Across our judicial system, whether within the Workplace Relations Commission (“WRC”), the Labour Court, the District or the Superior Courts, cases are considered and determined based primarily upon the direct evidence given by each party’s witnesses. The Judge/Chair will be much more focussed on hearing what the witnesses actually have to say, than what the lawyers have to say about what was said.
So how should you approach the giving of evidence? David McCarroll, Partner with RDJ’s Employment Team, in conjunction with Richard Martin, Partner in RDJ’s Commercial Litigation Team has put together some practical guidance for witnesses.
Understand the Setting and Role of the Witness
Firstly, this is a formal process and should be treated as such. Unless specifically directed otherwise by your legal team, you should dress formally which will help indicate that you are respectful of the Court and the process. Any judicial setting is a formal one. The Judge/Chair will have a lengthy case list and limited hearing time and they will want to get into the evidence of the case assigned to them, as soon as possible. So, you want to avoid delays and interruptions. Be early. Be in the right place. Be contactable if you are waiting for your turn to give evidence. The courtroom itself is not a place where people read the paper or flick through their phones whilst court work is being undertaken. Without question, your phone should be on silent, as should you! You stand when the Judge/Chair enters or leaves the room but you don’t have to bow – which is only something done out of respect by formal officers of the Court (ie solicitors or barristers).
Remember, you are not there to be entertained for the day. In fact, in many instances, you may even be asked to stay out of the courtroom until your evidence is required. If you are in the courtroom for any other witness’ evidence, it’s important that you don’t speak out or gesture or distract from other witnesses. You will annoy the Judge/Chair if you interrupt or distract by groaning, harumphing or laughing in the background.
Don’t interrupt the solicitor or barrister acting for you whilst they are addressing the Judge/Chair or questioning another witness. If you wish to alert them to something, pass a note – subtly, without drama. Remember too that the legal advisor advocating before the Court is likely working in a sequenced manner, establishing the building blocks one by one. Thus, whilst you might feel some small detail of evidence was lost, dragging the Judge/Chair back into that area of evidence, out of sequence, may weaken the wider presentation of the case. It can, rather, be addressed at a later point.
As a witness you have a specific role, namely to impart the relevant, direct evidence that you have personal knowledge of, so as to aid the Judge/Chair in their understanding of the case being made by your side. You can’t and shouldn’t give evidence about what someone else heard or thought, only what you know of directly.
You will be required to swear up in advance of giving your own evidence. That is done either by a religious oath or a secular affirmation and you will want to have determined in advance which you are going to do. It doesn’t matter at all which choice you make but have the decision made so that you can avoid delays.
Once you are sworn up, your legal team will take you through your direct evidence and after that you can be cross examined by the other side. The Judge/Chair will likely interject at various points to clarify matters, as well as addressing you with their own queries at the end of your direct or cross examination.
Direct Examination - Giving Your Own Evidence
To start with, read the relevant material in advance and be familiar with any letters, emails or documents that you will be questioned on. Although you might prefer it, a solicitor or barrister can’t actually tell you what to say in evidence. They will direct you to documents and areas of questioning but it’s your evidence, not theirs, so be completely familiar with all of what relates to you.
Turn and address all of your evidence to the Judge/Chair. They are unlikely to know anything about you or your case in advance, so you will need to walk through your evidence slowing and methodically. They generally don’t want to hear your entire life story, so stick to the relevant, pertinent facts and don’t deviate at length into other areas that you are not asked about. Speak clearly and with sufficient volume in your voice so the Judge/Chair can hear above the noise of the courtroom. Don’t address your answers to the barrister, remember it’s the Judge/Chair who needs to be convinced, they are deciding on the case!
Tell the truth. It’s obviously an offence to give false evidence under oath, so stick with the truth. Its also clearer, a lot easier to remember and always has a consistency that will resonate with the listener.
Listen to each question, pause and only answer when you understand the question. If you do not understand the question ask for it to be explained to you. If you need to read an email or document to understand the question, simply ask the Judge/Chair if you can have a moment to read it.
When you have answered the question, stop and allow for a pause (however long) until you are asked the next question. Do not keep talking in order to fill the gap between questions.
Keep your answers narrow and to the point. Do not volunteer any unnecessary information or stray into speculation. Stick to the evidence of which you have direct, primary knowledge. That means not commenting on what other people might have thought or other matters that you were not directly a party to. If you were not at a meeting or party to a conversation, simply state that.
Do not offer editorial comment on a matter e.g. “that’s an interesting comment” or “to be honest” or “to be frank”. To say “to be frank” gives the impression that here to fore you have not been frank with the Court.
Also, try to avoid giving absolute answers e.g. “I never said…” or “ I never did…”. That kind of absolutist language can be used against you in cross examination, so better to say “ I recall I said… “ or “I don’t believe I did that”.
During your evidence pay attention and remain calm and cool at all times. Nobody performs as well as they think they will and the Court is well used to people appearing nervous. All the Judge/Chair wants is to try and distil from your evidence the primary, relevant facts you can speak to.
Cross Examination – The Testing of Your Evidence
All witnesses dread cross examination, however, it’s a vital component of the judicial system and its best to consider it simply as a process, rather than some kind of personal battle with the opposing counsel or solicitor. Do not interrupt the questioner or get annoyed with them. Just allow the process to be undertaken and let them do their job. Your own advisors are unlikely to repeatedly interject or object, as they may have knowledge of the Judge/Chair and know the opposing counsel will likely be given wide leeway. Part of the process involves granting the other side an opportunity to poke, prod and test your evidence. But it’s also the role of the questioner to put certain contrary evidence that may have been given or is yet to be given to you, to allow you to respond.
Witnesses under cross examination, even those under quite offensive or outright rude cross examination, perform best when they turn away from their questioner and look at the Judge/Chair. The questioner may adopt any number of theatrical tricks to distract you or get under your skin with the aim of painting you in a certain light. They may take an aggressive tone, a sarcastic tone and incredulous tone. Often, if you are replying, they may ignore you and rustle their papers or start talking to their solicitor in an attempt to downplay the importance of your reply. Sometimes witnesses can get unsettled by the questioner simply consistently agreeing with them!
All of these devices can unsettle a witness. Do not look down at your legal team as if you need help when asked a question or put on the spot. You don’t need to be bullied by the questioner. Instead, there is a very simple mechanism to avoid being drawn into all of the theatrics – look at the Judge/Chair, not the questioner. If you are not looking at the questioner, it’s much easier to avoid the conflict and remain focussed on the primary reason you are here – to convince the Judge/Chair.
In terms of what to say and what not to say, stick to the facts that you know and the truth. Do not think out loud. Unless you are a specific type of expert witnesses, you are not there to give your thoughts or views, you are there to give your factual evidence of what you know.
Do not answer a question with a question. You are not there to advocate or fight the case, that’s not your role.
Also, don’t embellish matters or seek to cast a more rosy projection, particularly regarding the more problematic facts. It’s a rare case that doesn’t have weaknesses and problematic angles, but whilst you will likely have discussed those in advance with your legal advisors, if something new comes up better to simply limit your reply to the straight facts without being drawn into long contextualising explanations.
Give the answer if you know it and don’t be evasive. Even if you feel the truthful reply will not reflect well on your case, get the straight factual reply out, without coaching or softening. That is far better than being evasive, which only provides your questioner with a rich vein of follow on queries. Never guess when answering a question. Only answer if you know the answer and if you don’t know, just say so.
In terms of what is asked of you and how, beware of questions which contain the words “maybe”, “might have” or “possibly”. Beware also of long questions. Try and break down what you are being asked into small factual replies. A long question doesn’t always necessitate a long reply.
Also, do not agree with what the questioner is saying unless you are absolutely in agreement with him/her. Its perfectly fine to say that you agree with point a) and b) but not point c). On a similar vein, beware of summaries of your previous evidence which are put to you by the questioner. Always ask to see your previous evidence and, if its in a document within the booklet of evidence, you can first have it read out in its entirety.
If the same question is being put to you repeatedly, that does not require you to give a different answer. You can simply repeat the reply already given and respectfully disagree with the position or contention being put to you.
Its important not to try to read the mind of the questioner. Often, a witness will wrongly try and second guess the reasoning behind a question and even be tempted to answer in a certain way, thinking they are a step ahead of the questioner. Don’t. Simply answer each question on its face value and don’t think ahead.
Remember, upon the conclusion of the cross examination, your legal representative will also be given an opportunity to take up any matter that arose during that process and that can be an opportunity to tidy up any inaccuracies or grey areas.
In conclusion, the witness is there for a specific purpose and is only one part of the overall presentation of the case. The best witnesses are those that give clear, audible, factual evidence and who come across as authentic. There will inevitably some blows that land within any cross examination but if one sticks to the general approach suggested above, that will enable you to convey the truth of what you know for the benefit of the Court’s understanding. Ultimately, that’s the best and only way a witness can serve the case.