- Interview witnesses alone (or with an interpreter only, if necessary). Otherwise, it is open to suggestion later that there was collusion between witnesses. It also makes it easier to assess the impression a witness will ultimately give when in court.
- Use the first person and the witness’s own words. The witness may be cross-examined on the statement and needs to be able to understand their own evidence. Draft the statement in chronological order. It should tell a story.
- Use the past tense – the witness is describing the state of affairs at the time of the relevant incident.
- Use short sentences and short paragraphs. Each paragraph should be numbered and should cover a single point.
- Where a witness makes a statement in their professional capacity, the statement may state their business address rather than residential address.
- You generally need to avoid hearsay evidence (that is, evidence based on what someone has told the witness and not of direct knowledge). You can however include hearsay evidence in witness statements for interlocutory hearings, provided the witness identifies the source of the evidence given. The best way to avoid including hearsay evidence is to draft the statement so the witness’s evidence is confined to what they actually saw, heard, or smelt.
- Statements such as ‘I understood’ or ‘I thought’ or ‘I intended’ should be avoided unless state of mind is an issue. If state of mind is an issue then set out the words of a conversation or describe what the witness saw from which the court can conclude that the witness had the relevant state of mind.
- Similarly, avoid conclusions in a witness statement.
- Just describe what the witness did. The lawyer can ask the court to make the necessary conclusion during argument.
- For example, rather than ‘I would not have said something like that because it is not written in my notes’, try 'I always take my notebook with me when I meet with a client. My practice during any meeting with a client is to write in my notebook any recommendations that I make to a client about the next steps they should take'.
- For example: On 24 December 2012, I met with Mr Claus at his business address, and we had a conversation to the following effect: ‘Rudolph would be available to work this week’.
- Otherwise, use words describing the nature of the recollection of the witness, for example: I met with Mr Claus on 24 December 2012 at his business address. I do not recall the actual words used. I asked him a number of questions. One thing I asked him about was the staff numbers he expected over the holiday period. In his answer, he referred to Rudolph, Dasher and Dancer as employees who were confirmed to work the following week.
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