The Purpose of the Witness Statement
In the context of personal injury litigation, perhaps the most critical document is the witness statement. When an event is witnessed by only one individual, that witness’s memory becomes the only record of the matter. Acquiring a detailed and accurate witness statement is therefore critical to protecting the rights and entitlements of the injured party from the outset.
A witness statement serves the purpose of documenting facts regarding an event. It creates a record of the witness’s account of the matter while evidence is still fresh in memory, in order to ensure that frivolous or misleading "facts" cannot be introduced later on to interfere with the progress of the matter. Witness statements also include a declaration that the facts set out in the written account are true, thereby strengthening their value in challenging any "facts" introduced contrary to the witness’s account . While witness statements are valuable when taking a matter to court, they are just as important in laying out the strengths and weaknesses of the case when making a decision as to whether to proceed to litigation.
The judge is unable to understand the circumstances of the matter without this written record. All formal evidence must be recorded in order to be admissible. The witness statement therefore plays a key role in preserving evidence and facilitating the thorough examination of the facts at hand in a civil case.
It is important to remember that witness statements are drafted carefully by the author according to specific drafting rules. This is what gives them their strength as evidence, but this also means that witnesses should seek professional assistance when drafting their written account of an event. Any careless inaccuracies could easily unravel the statement’s value in presenting the relevant facts as well as possible.
The Essential Components of a Clear Witness Statement
The facts in the witness statement should be presented in a logical order. Typically, the witness statement should begin with a short introduction describing the facts surrounding the relationship between the witness and the subject matter, followed by a recitation of the relevant facts clearly stated in chronological order, and, finally, a concluding paragraph summarizing the pertinent information stated within the body of the witness statement. As a practical matter, the witness statement should be drafted in short paragraphs, and each paragraph should relate to a specific subject matter. For example, if the witness statement relates to a disputed contract, the first paragraph should describe the facts surrounding the reasons the parties entered into the contract, the second paragraph should detail the relevant facts relating to the execution of the contract, the third paragraph should address the relevant facts after the contract was executed, and so forth. Each of these paragraphs should be self-evident and logically flow into the next paragraph. In addition, the witness statement should be drafted in a manner that is transparent on its face. For example, it should avoid the use of legalese or other phrases whose meaning are not universally known. The reason for this is that the witness statement may later be utilized as evidence in a legal proceeding, and, thus, should be drafted in a manner that is easily understandable.
The Process for Writing a Witness Statement
When writing a witness statement, it’s essential to prepare the document in a way that’s accessible and easy-to-read for the benefit of the court or tribunal. The presiding judge or tribunal member can then ascertain the witness’ evidence quickly and efficiently.
To produce an effective witness statement, follow the step-by-step process below. Firstly, ensure that you’ve allocated enough time to write the statement. As a rough estimate, a straightforward statement could take an hour or so to compile, while a more complex statement will likely take longer still. It’s therefore crucial to allow yourself adequate time in which to plan, draft and review the final statement. In your opening paragraph, begin by stating your full name, age and address, along with the capacity in which you provide the statement. For example, if you are a witness in an employment dispute, then you should make it clear that you’re speaking as an independent witness, not as the employee’s boss or friend. The opening paragraph of a witness statement should also define the witness’ relationship with the parties involved in the case. Therefore, if you’re friends with one party but have a particularly strained relationship with the other, or whether you have no prior relationship with either party, you should make this clear in your opening statement. Your opening statement is also the place to mention where you were when the events in question occurred, even if it means reiterating this information from the letter of instruction or information which has been provided to you. For example, you may have been present when an individual has made an inappropriate comment. As the first paragraph of your statement gives context for your evidence, this paragraph is equally important to your witness statement as the subsequent paragraphs. Having introduced yourself and the parties involved in the case, move on to the chronology of events. Chronological order is the most useful in these circumstances and will allow the judge to follow the events in the same way that they occurred. Even if a particular event wasn’t central to the dispute, you should still mention it in chronological order. After you’ve written your statement and you’re happy with what you’ve put down, you should then review it for accuracy from the perspective of all the individuals involved in the conflict. To do this, you should read through the statement twice with the letter of instruction and timeline of events to hand. If you find any sections where you feel you require further information in order to compose an accurate statement, don’t hesitate to contact the instructing solicitor and let them know precisely what evidence you need to complete your statement. Once you’ve reviewed the statement(s) in question, it is now time to sign the document, being careful to state the date on which you’ve signed it and include your full name (printed).
Common Errors to Avoid
Common mistakes to avoid include getting the dates or times wrong. If you have forgotten, get in touch with your solicitor to check to determine if this information is available. You should avoid getting confused about the day and the date. The police have a computer, which makes calculating the day of the week from the date you are talking about easy. For example, you may say, "On Sunday I saw him…" and you should really be saying "On Thursday I saw him…" – this can be a common mistake. Dates are also notoriously tricky for those of us who work every single day of the week. Making sure you double-check your last drinking day is important, especially when the police might want to rely on the witness statement.
There are some words you should avoid using in witness statements, such as "apparently" and "obviously" as well as "obviously not." These sort of words add nothing to a witness statement apart from your opinion. There is nothing that is apparently the case and nothing that is obviously the case. If it’s obviously not the case , then it’s obviously not the truth. Just stick to the facts as you understand them to be.
You should be careful not to use opinions in your witness statements. You should also be aware that sometimes you might be making opinions within an observation, such as, "I timed him, and he was doing 36 mph." That is giving an opinion but in direct observation. Try to get things right – make it 35 or 37 mph, no doubt it will be corrected if you’re getting it wrong.
A mistake to avoid at all costs is putting down big chunks of writing along the lines of, "It was September the 8th 2016…" could get very confusing. So try to keep paragraphs down to three sentences and no more than five. You have to bear in mind that the courts are under pressure and judges don’t like reading massive blocks of writing. It eats para-cetamal tablets with boring facts and they want you to get it down to a couple of pages. They want convictions and so do you. So try to keep it concise.
You want to make sure that you don’t put down things that you can’t remember or instead of just saying "I don’t remember" try to remember that you were confused at the time.
Confidentiality and Other Legal Issues
When it comes to legal matters, it’s essential to understand the related legal considerations and confidentiality issues when it comes to witness statements. Especially if you are conducting an internal investigation or exploring sexual harassment allegations in the workplace, it’s important to know that witness statements could be reviewed by plaintiff’s counsel. Still, unless there are other proceedings related to the matter, you won’t have to turn over your witness statements as part of a lawsuit.
The rules between the parties or any indemnification duties between the employer and the individual employer are separate from what law requires. The witness statement is owned by the company and is filed with legal counsel. The company representative will contact the witnesses to schedule interviews for the purposes of a proper and thorough investigation.
One thing that should be clear from the start is that the statements should not be reviewed during the investigation or trial by any party other than company representatives and legal counsel. Documents containing investigation findings including witness statements also fall within the scope of the attorney-client privilege. In some instances where the report is reviewed by management that is not responsible for the case, this could waive the privilege. Privileged documents can only be disclosed pursuant to a valid subpoena or court order.
Examples of Effective Witness Statements
Effective witness statements can leave a powerful impression on the court and sometimes even settlement discussions. The following examples highlight how well-written and specific witness statements added significant weight to the respective cases:
1. In Cruz v. State Farm Mutual Automobile Insurance Co., a witness statement from a first aider saved the day. Here, the plaintiff moved for summary judgment after defendant’s counsel failed to provide a "practical explanation" for why it could not produce its own statement from its insured in support of its denial of coverage. No authenticating affidavit from its corporate designee was provided. Instead, the defendant produced an affidavit which simply referred to its claims notes, and appended those notes to the affidavit without further explanation. The claims notes were incomplete, and did not explain the defendant’s denial of coverage. However, the defendant’s denial was verified by a first aider. The defendant failed to object to the first aider’s affidavit as a late disclosure. See Fed. R. Civ. P. 37(c)(1). Thus, the Court considered it, and found it "compelling." The statement provided that as of October 15, 2015, a coverage determination had not been made because insurer representatives were "playing phone tag" with plaintiff’s medical providers. The plaintiff’s medical providers had not yet provided all of their contact information. Plaintiff’s medical records had not yet been obtained . In response to plaintiff’s counsel’s inquiry about the status of its coverage investigation, State Farm’s claims representative sent the first aider the following, "is this claim still open or is it closed? If I need to call the provider, please provide the contact number?" After State Farm finally requested the medical records and received them, it then immediately denied the plaintiff’s underinsured motorist claim.
The Court’s Summary Judgment Ruling highlights that: "State Farm’s failure to explain the gaps between its initial investigation and eventual coverage decision about the cancellation of its insured’s underinsured motorist (UIM) coverage obligations precludes summary judgment in favor of State Farm." This illustrates how witness statements can be crucial to the outcome of a case.
2. In Diversified Services Inc. v. James River Ins. Co. the Court relied upon a "comprehensive witness statement" by an individual closely associated with the relevant activities and events of the case which "establish[ed] that there are genuine issues of material fact regarding the ‘property damage’ at issue in this case." The Court noted that these facts ‘must be viewed in the light most favorable’ to Plaintiff and because ‘the inferences to be drawn from the materials presented’ must be ‘viewed in the light most favorable to the opposing party,’ the Court determined that reasonable minds could differ over the issue of ‘property damage,’ and consequently, the Court could not grant summary judgment.