Appearing as a witness in civil proceedings can be daunting and intimidating. Whilst a barrister or solicitor cannot coach you in relation to your evidence before a trial, they can help you understand the process and what will be expected of you. Here, we outline why this is and what it might include.
Appearing as a witness is something most people find stressful and unnerving. The sensationalist depiction of court proceedings by films, TV, and the media hardly helps, often portraying the witness experience as hostile, humiliating, or even dangerous.
In addition to being challenged in a public forum, many potential witnesses often worry about reacting inappropriately to challenging questions or saying something that is unhelpful – or even harmful – to a party’s case.
If you are called to give evidence, you may understandably be unsure about what is involved. According to the General Council of the Bar, counsel (a barrister) can “play a significant role in the preparation and presentation of witness evidence”. Assisting witnesses is, in fact, encouraged because it helps them to be aware of the basic requirements for giving evidence, thus increasing the likelihood that they will give their best at proceedings and provide evidence clearly and comprehensibly. However, there are strict rules on what solicitors and barristers can and cannot do to assist before a witness gives evidence at trial.
Not a legal coach
Where giving evidence is concerned, there is a huge difference between receiving what is known as witness familiarisation and receiving witness coaching. The former is widely supported by the courts and involves familiarising witnesses with the layout of the court, the likely sequence of events, the different responsibilities of various participants, and the basic requirements for giving evidence. The latter – coaching – is prohibited because it risks influencing a witness’ evidence or recollection of events.
Counsel are also prohibited from encouraging a witness to give misleading or untruthful evidence, and cannot “rehearse, practise with or coach a witness in respect of their evidence.” Persuading a witness to alter evidence will place counsel in contempt of court.
What will the courtroom be like?
A court typically sits from 10.30am until 1pm and from 2pm until 4.30pm. The Judge sits on a raised platform, with the clerk of the court and the court usher directly in front of them. Counsel and solicitors will sit behind a table facing the judge.
The witness ‘stand’ – which is usually a table in modern courtrooms – is to one side of the room. It includes a table in front containing a full set of documentation referred to during the hearing, including your witness statement. You cannot bring your own copies with you.
When you are called to give evidence, the court usher will ask if you wish to swear or affirm. The former is a solemn oath taken with the relevant Holy Book in hand (such as the Bible). The latter is an affirmation with no links to religion. Both carry the same legal weight and require you to give “the truth, the whole truth, and nothing but the truth.”
From here, you will be asked to confirm your signature on your witness statement before you are cross-examined by the counsel for the opposing party. The counsel for the party for whom you gave a statement may also re-examine you, while the Judge can ask questions at any point.
Contrary to what its name suggests, you can sit down while on the witness stand.
Legal teams may offer witness familiarisation sessions, but they are restricted on what these can provide. In advance of criminal proceedings, for example, a person with no knowledge of the matters or issues to be discussed in the case must conduct the witness familiarisation sessions, as stated by the Court of Appeal in R v Momodou  EWCA Crim 177 (par 64).
The Bar Council and other legal associations recommend that counsel act under the assumption that the same general principles apply in civil proceedings.
In addition to helping a witness understand the theory, practice and procedure of the evidence process, some witness familiarisation sessions may also provide mock-versions of an examination-in-chief, cross-examination or re-examination. Again, these must bear no resemblance to the specific facts of the case and act only as a means through which to build a witness’ familiarity and confidence with giving evidence in court.
During a rehearsal, solicitors or counsel must stop the process if they feel it risks contaminating a witness’ evidence. They must also report to the trial judge any attempts by the witness to discuss their evidence, making it essential that both parties understand, and comply with, the relevant restrictions.
The evidence provided by witnesses can play a vital role in ensuring proceedings are fair and balanced. It is therefore important that a witness is neither placed at a disadvantage due to a lack of awareness of the court process, nor coached on the most effective ways to make their evidence credible.
If you are asked to give evidence at a trial, consider approaching a legal professional. Remember, they cannot help you prepare your evidence, but they can help you feel more confident about what will come next.