James Perry, Director and Co-Manager of the DWF Recoveries team, discusses how many cases which reach Trial are won or lost by the witnesses who give evidence, and what you should be looking out for when assessing a case and weighting your evidence.
Witnesses; the jam in our litigation sponge cake, the magic ingredient X in our bottle of branded cola. But what exactly is their part in a client’s quest to secure Judgment at Trial?
In 12 years I have seen a great many hearings, read a great many Judgments and acted for a number of clients across all sectors. I recently came to the conclusion that no matter what case you have conduct of, most of those which reach Trial are won or lost by the witnesses who take the stand. So what should we be looking out for when assessing a case and weighting our evidence? What pointers would help you when trying to determine your likely prospects of success?
Early analysis of the evidence
Following the introduction of Civil Procedure Rules there has almost been a culture created where practitioners, because of their focus on getting the rules right, have forgotten what their primary aim is – which is to constantly advise the client on their prospects of success and to try and settle each claim that comes across or their desk. Too often I see practitioners getting hung up with the procedural aspects of a claim; simply going through the motions to complete a step in proceedings and as a consequence postponing their analysis of their claim for another day.
The cognitive thinking required by your lawyer to assess a claim (the task that takes time and thought) is often delayed for one reason or another until the next deadline is fast-approaching. So before you know it the Trial is on top of you, costs are too great and the simple opportunities to secure a commercial deal with your client have long since passed. My view is that this is often an unfortunate symptom of the recent reduction in available revenue we’ve seen firms generate from the volume of claims they deal with. This has resulted in a lot of non-qualified staff doing a lot more of the work to maintain profit margins.
In a lot of respects this is not a bad thing but it does require a different kind of approach, and the big problem I see in practice is that every fee-earner is bench-marked against completing the procedural steps, rather than resolving the claims. This is our misguided focus where lawyers first learn how to muddle through to satisfy the requirements of the Court rather than focussing on what actually matters - getting a quick, commercial result for our clients. Unfortunately until there is a shift of emphasis I cannot see this issue resolving itself. This is why you need a service that encapsulates both elements at certain key point in proceedings, like we do at DWF. Our focus is to promptly progress cases so we can get them to Trial, but at the same time always train our people to look for the commercial answer by analysing the evidence and trying to do a deal.
To be able to do both, upon receipt of a defence you need to be reviewing cases as soon as possible, weighting the evidence and, with the assistance of your lawyer, coming up with a comprehensive 'risks v rewards' analysis. By focussing on the facts, compiling a detailed chronology and pulling together all documents it is often possible to sensibly guess what the net result at Trial is likely to be. Doing this also means organising those documents, which means that you won’t be paying for your lawyer to do that for you. If you are passing on information to your lawyer, think about what they need to do with it. Making it easier for them to digest, will make it less costly for you.
Analysing the strength of your witness evidence
Once you’ve pulled together your documents you can then review and decide with your lawyer who your witnesses are likely to be. These will be the people who saw or heard something of significance. You should only be interested in direct witnesses that can actually confirm what happened at the time.
As a litigator acting for businesses I constantly get asked the question “Does Mr So-and-so need to attend the hearing as a witness or can he just file a statement?” My answer is always the same. If you want to give yourself the best chance to win the case then “Mr So-and-so” will need to be there to fight your corner. If the other side turn up to give their oral evidence and you have nobody in the stand to cover each point they make, then you make the Judge’s task of weighting the evidence and making a decision very easy. The easy option for a Judge will always be to believe the witness who has bothered to attend over the witness who hasn’t. A very simple point but one which is often not understood by clients.
Key questions to ask yourself when weighting witness evidence
Once the chronology is set and the documents have all been disclosed these are some of the key questions to ask yourself when trying to weight your witness evidence:
- Are all your witnesses available to attend Court?
- What are they like? Impressions will always count. Do they look the part? Will they be calm under cross-examination?
- Will the business lose revenue by virtue of them attending Court for a day or so? If the business will lose revenue, then assess how much it will cost and is the sum too great? Here, we want to know if it is worth them attending.
- Are your witnesses internal or external? In my experience an external witness provides a degree of impartiality which is good but quite often, if they have no reason to attend, they try to escape the stand. It shouldn’t be the case but your better witnesses are always internal witnesses who have a vested interest to attend. Of course, that will still depend on how well they do when being cross-examined, and what evidence they give which you cannot and should never try to influence.
- Are there any gaps in the evidence? Sometimes evidence is lost and sometimes witnesses are missing. How does that affect your case? Will the Judge have the full jigsaw of evidence in front of them? If pieces are missing can the Judge still see the picture on the box! As a Claimant it is your job to form the picture so you have to form a sensible opinion, and never get carried away with the injustice of the situation. Ideally, everything has to be backed up with evidence.
- Is it possible you might need to issue a witness summons to someone so they will attend Court to give evidence? This is where you force someone to attend. It is potentially a risky strategy because you could end up dealing with a hostile witness. How does that affect your assessment?
Always remember that you have until the exchange of witness statements to put forward a bullish case, but as soon as statements are disclosed your hand has pretty much been revealed. This is why many cases nowadays are settled before exchange of statements takes place.
It is important to continue to assess the situation and to keep asking the above questions. If your assessment leads you to conclude that the claim you are running or defending is a risky claim, then you should attempt to settle. If this kind of a situation materialises on a case then keep thinking that a bird in the hand is certainly worth more than two in the bush. My simple advice is not to leave it until the other side know what your weaknesses will be. Always try to exploit your advantage pre-exchange before the birds in the bush take flight!This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.