Contents of witness statements

Overview

If you are making a witness statements it should:

1. be written in your own words, in the first person
2. state facts within your personal knowledge, and if not
3. specify the source of the information or belief is not within your direct knowledge
4. not give opinions, unless you’re an expert
5. exhibit documentary evidence to support the statements made
6. follow the chronological order of events
7. use numbered paragraphs so that different parts of it can be referred to quickly and easily.

It should include all the evidence that you are able to give to assist the court decide the case. 

The form of witness statements

First page: Case Title

Witness statements have a prescribed form. Witness statement should set this information out on the first page:

1. the title of the proceedings
2. the name of the person making the statement
3. the party to the proceedings on whose behalf the statement was made
4. the exhibits made in conjunction with the witness statement
5. the date it was made
6. the number of witness statement of the witness making the witness statement.

The case title makes it clear on the first page the legal proceedings witness statement is made for, and who made it.

Section: Identifying yourself

Following the case title comes a statement identifying the deponent – the person signing the witness statement.

It has a prescribed form:

“I, [name], [occupation], of [address] will say as follows:”

If the witness statement is made in a business capacity, the address should be your work address. Otherwise it is your home address.

If you are unemployed or retired, those words replace the space provided for the “occupation” of the person.

Court procedure in England changed around 2000. Prior to that, witness statements were not prepared before the trial. The witnesses just showed up and gave oral testimony in person. That would be the first time the other party would hear what the witness would say.

The Civil Procedure Rules were introduced in 1998 and the CPR’s change it so now witness statements replace evidence in chief which before was given by oral testimony. Witnesses now give their evidence in chief in their witness statements.

When you appear at court, you are called for cross-examination not to give oral testimony.

Section: Preliminaries

Source of Evidence

Well drafted witness statements commence with a statement confirming the source of the evidence given. And then stand by it.

It usually has words like:

The facts set out in this statement are within my own knowledge save where I state otherwise. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

or

Except where I indicate to the contrary, the facts and matters contained in this witness statement are within my own knowledge. Where the facts are not within my own knowledge, I have identified my sources of information or belief.

Different words, same effect and message. You’ll want to make sure you stand by it in your statement.

It serves as a reminder what evidence is should be given, and what shouldn’t – or can’t – be given.

It may sound trivial. It’s not. 

In one case, words similar to those above were used in witness statements. But the witness statements didn’t stand true to the statement.  In Starbucks  v British Sky Broadcasting Group, the Judge said:

1. Despite [using words similar to the words in blue above], some of [the] statements contained information that, as she readily acknowledged during cross-examination, was not within her own knowledge, but without making this clear or stating the source of the information. This is a breach of CPR PD32 18.2 [… ]. [I]t inevitably causes unnecessary difficulties for the witness when cross-examined.
2. […] The fault lies with the solicitors who drafted the witness statements. […] This slipshod approach to the preparation of witness statements must cease. 

Those “difficulties” translate to being asked in cross-examination:

• whether the witness statement as a whole contains the whole truth
• whether there are any other parts of the witness statement which aren’t true
• getting you on the back foot, and unsure of yourself when you’re under pressure.

Where the source of the information or belief is not provided, it’s likely to lead to the evidence given being (at least) heavily discounted and perhaps excluded from evidence which the court is prepared to consider altogether. 

If it’s not within your direct knowledge: you didn’t see it or experience it, it’s hearsay evidence, and of little weight at all.

The purpose of using the wording at the beginning of a witness statement is, in a way, to remind witnesses of the limits of the evidence they can give, and:

• protect you from one of the harsh technicalities of the law, and
• preserve your credibility in the witness box.

Introducing the Deponent – You

Next, introduce yourself, in brief – in one or two sentences. Say who you are, and your background. Some people like to start the narrative (see below) to introduce themselves. Making a brief statement here, and then expanding on it in the narrative section (if necessary) might work better.

Also, this preliminaries section is:

• a good place to say you are related to any of the parties, such as “I am an employee of the Claimant” or “I am the brother of a director of the defendant”, if you are, and
• a handy place to define terms and abbreviations that will be used throughout the witness statement, if there are any.

Section: This Witness Statement

It’s a good idea to explain why the statement is being made, or the purpose the witness statement is being made early on. This is the place to do it.

Although it may be obvious, your witness statement may be one of many in the legal proceedings.  State why the witness statement has been prepared. You will also save the judge some aggravation by having to work it out for themselves.

This may be a statement that it is made in support of an application notice, in response to an application, or for the trial.

Section: Exhibits

You will often need to refer to documents upon which you rely to state the facts that you state.

If documents are exhibited, it is a good idea to introduce them at this stage.

Also, it is usually a good idea to group exhibits by categories and make separate exhibits for each category.  If they are dated, put them in date order within each exhibit.

See also the heading “Exhibits” below for guidance to arrange them.

If there is one exhibit, it could be introduced with words like:

There is now produced and shown to me a paginated bundle of relevant documents marked [exhibit reference] which I will refer to in the course of this statement in the format “[exhibit reference] / page number”.

Where there is more than one exhibit, it is a good idea introduce the contents of each exhibit with a summary of its contents.

More on that further down.

Section: The Narrative

This is the business end of the witness statement. Having set out the context of your witness statement, the reason why it was written, the documents that will be referred to, it is time to tell your story.

Everyone drafts witness statements differently. To make it easy to read:

1. Use short sentences and paragraphs, where possible
2. Keep it as concise and to the point as possible
3. Use correct capitalisation and punctuation
4. Avoid huge blocks of text
5. It’s OK to introduce documents and explain them if they need it, but don’t provide extensive commentaries or opinions. That is for arguments to be put to the judge at the hearing.

In this narrative, you’re telling your story.

You can only give evidence of what is in your personal knowledge. It helps to have documents which back it up. The exceptions include when someone has told you something, and you believe it. Again, preferably with documents, such as emails or instant message transcripts, if they exist.

It really is difficult to overemphasise the importance of making it clear that facts of information and belief (and not within your own personal knowledge), indicating the source for any matters of information and belief. It’s an important distinction to make, because one is direct evidence, the other is not.

Other things to bear in mind:

1. If you refer to someone, introduce them by giving their full name and position or role with their employer, or some other description to explain why you are mentioning them
2. If you refer to a company or incorporated legal entity, state its full name, address and the sort of business it is engaged in (software developers, mechanics, consultants or suppliers as the case may be)
3. If you have any doubts or reservations about what you say, state them. You don’t want to be accused of misleading the court by leaving a false impression.

If possible, include answers to questions that you are likely to be asked by someone reading your statement. You’re likely to be asked in cross-examination anyway in due course.

Section: The Ending – The Statement of Truth

Witness statements have to be signed with a statement of truth. The statement of truth for witness statements is:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Statements of truth verify that you believe the facts stated in the  document to be true and accurate: you have an honest belief in the truth of what you say.

You sign and date the witness statement under the statement of truth.

The capacity of the person making the witness statement should be made clear.

For instance, where the claimant is an individual and signs the statement of truth, it might appear like this:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
………………………………….
James Smith
The Claimant
[date]

If the witness statement is made for a company which is say the second defendant in the case, it would read like this:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[signed]

………………………………….
Andrew Brown 
[Director] [Chief Operating Officer] for the [Second] Defendant
[date]

The exhibits should be completed, printed and in front of you, with the witness statement at the time that you sign it. 

But you’ll want the exhibits to be in a single document (usually a PDF), paginated and with the exhibit cover-sheet so that there can be no confusion about what the exhibits contain. We prefer to print everything and then scan everything after it’s all signed. It’s a safer approach to avoid muddling the order of documents. 

Nothing should be changed in the document after you sign it. If you want to make changes, you should re-prepare another version for signing and sign it all over again.

Before you serve it. 

The consequences of signing a witness statement or other document verified by a statement of truth –  without a genuine belief in the truth of what is said in it can be serious. 

Changing your witness statement

After you finish and sign your statement, your recollection may change. You need to consider whether you need to put in another witness statement to avoid the other party – and the court – being misled by your witness statement. The changed evidence should be part of a further witness statement, which is served on the other parties.

Statements of truth used for expert evidence differ. The reason is that experts owe an overriding duty to the court. More on that below.

Preparing Exhibits to Witness Statements

Documents which are referred to in a witness statement are organised into one or more exhibits. They are part of the witness statement, although the exhibits may not be attached to it. When you sign the witness statement, each exhibit should be:

• complete
• have numbered pages (bottom right hand corner; “1”, “2”, “3” and so on), or even better [Exhibit Reference] / [page number], and
• have an exhibit cover-sheet.

The numbered pages allows you to refer to page numbers of the exhibit in your witness statement. You can find the page to the exhibit in your witness statement at hearings quickly.  It is better for both you and the judge (which is the person you’re trying to impress). An index to exhibits really helps as well when they contain many documents, because it helps locate individual documents in large exhibits.

If there are many documents and they can be categorised, they really should be split up into different exhibits. 

Suppose a person named Stan Smith makes a witness statement. It has 3 exhibits. Let’s say it’s his second witness statement. His first witness statement had two exhibits, “SS01” and “SS02”.

The exhibits to his second statement would be marked “SS03”, “SS04” and “SS05”. 

It is a good idea to exhibit documents in this way because:

1. the documents support your case
2. it serves as a reminder to you of why you said something in your witness statement
3. it’s more difficult to criticise your witness statement for lack of documentary support
4. you protect yourself by ensuring that what you say is referable to a specific document 
5. when you refer to a document, you are able to refer to different parts of it, with the context of what you say in your statement
6. if there is anything unusual about the document, you are able to comment on it
7. the judge will be able to see what you are talking about, rather than have to work it out or guess what you are talking about (and then seek clarification at the hearing)
8. your cross-examination will be either be harder or more focused, because you’ve kept yourself only to  what you can say, without sounding like a person drawing baseless conclusions.

Also:

• bundles of letters, emails and messages (such as WhatsApp and text messages) should be in chronological order, so that the earliest letter is at the top and the most recent at the bottom.

Finally, at the same time you sign the statement of truth, you must verify that each exhibit is authentic. You do so by signing (or writing and signing) a statement on the exhibit cover sheet.

The statement usually says:

I verify that this is the exhibit marked ‘[exhibit reference]’ to my [number] witness statement dated [date].

Writing a Good Witness Statement

The Importance of Context

When preparing your witness statement it’s a good rule of thumb to exhibit documents to the witness statement which support the facts you state. 

For instance, suppose you are in a case where the other party alleges that you misappropriated their confidential information, and then used it to make a copy their invention.

In this hypothetical, you didn’t. You made it yourself, independently from the other party over a period of months or years.

To make out your defence, you need a witness statement for trial. The court will be interested to find out how you developed your own invention. It would make sense to cover the development process, step-by-step over time.

Turn of Events

You could just tell the story that:

In one month you were doing research, then you created the proof of concept in the next month.

After that might come the internal testing and analysis of results.

Then you released the minimum viable product and did marketing, testing and received some feedback.

And it was after that was the first you heard of the claimant: when they wrote to you claiming that you’d copied their invention.

Bare statements of fact setting out a chronology of events is, well, better than nothing. But it has little weight. There is no independent evidence to support what you say.

Documentary Support for Witness Statements

Let’s say that after you prepare that basic chronology, you go off to your archives. You start looking for documents and materials which support what you say.

Like emails and notes that show the timing of events in the development.

Here’s what you mind find:

1. notes of your observations of testing, results of failed tests, notes for improvements
2. performance results from proofs of concepts
3. versions of the invention
4. email communications with potential suppliers
5. discussions with others in the market
6. social media posts
7. photographs of materials used in your research
8. contracts with suppliers engaged
9. photographs from trade shows

This sort of evidence is “relevant” because it shows – or tends to show – that you were developing and did develop the invention independently of the person who says you didn’t.

Think about it.

If evidence of this sort is included, your witness statement moves from being an unsupported story, to one backed by evidence which holds its own weight. And a good arguable defence.

The documents you have found add credibility and believability to the witness statement.

Omissions

Often a story can be told and details are left out for brevity or impact. Witness statements are not the place to do this. If you know anything and it is left out, which leaves what is said in the witness statement untrue or misleading, you really do need to include the extra information.

You need to be able to stand by the statement and tell the truth, the whole truth and nothing but the truth. 

Self-contained

Ideally, the reader of your witness statement shouldn’t have to refer to any other document to understand what is in your witness statement.

Jargon

If any jargon or industry specific language needs to be used, it should be explained succinctly.

So if you need to refer to say, software-as-a-service, you might add that it is services delivered by software from a central server in a web browser, where the user does not have a locally installed copy of the software.

Proofing your Statement

Hopefully, you will not find yourself in a position where you need to sign your witness statement on the same day that you have to file and/or serve it. You’re better off if you plan to have a final version ready for proofing 7 days before it needs to be filed and/or served. 

When you are reading over your statement, try to spot ambiguities and gaps in reasoning or the flow of the statement. If there are gaps, fill them in so that each step follows logically and sensibly from the previous statement (or heading). 

If you’ve told the story – the narrative – in the sequence that they took place (i.e. chronological order), they’ll be obvious.

Don’t think that if you mix up the order of events that the other party won’t spend time finding the gaps and inconsistencies. Assume that effort will made, because cross-examination is truly devastating to a witnesses’ credibility: i.e. “believability”.

Opinion Evidence

Some straight-talking.

Court decide facts based on the evidence, on the balance of probabilities. Witness statements are used to prove facts which are alleged in statements of case. 

It is not for witnesses to express opinions or arguments. Sure explain the evidence presented if it does not make sense.

One of the unique features of courts is that the judges form their own view from the evidence, and decide the facts. The advocate will present arguments to the judge based on the the evidence before the court. They also make submissions on glaring omissions and inconsistencies in witnesses’ evidence.

You will devalue your witness statement when you state opinions.

If a court needs an opinion, it will make orders in case management directions for the parties to have a qualified experts to be receive relevant evidence from the parties and prepare a formal expert report. In that report, the expert may express a reasoned opinion based on the evidence set out in the report.

Otherwise, some courts have some tolerance for opinions. You’ll want to make sure the opinion is supported by what you say in your witness statement. This is so that opinion can be proved – or at least demonstrated – objectively.

So your witness statement is not the place for:

1. personal opinions
2. prejudicial comments criticising others
3. opinions on the issues in dispute in the court proceedings, which the court needs to decide.

Try to avoid giving opinions unless you are formally qualified to give one, and it is objectively provable