Authors: Janine Bonifant, Sally Carter
Published: 6 October 2021
Pages: 23

Introduction

Witnesses are an important part of our core business as litigators. Cases are determined on the evidence presented in Court. Evidence almost always involves witnesses.
The problem with witnesses is that they come in many different shapes and sizes. Whilst openings, closings and submissions are largely within our control, often witnesses are not. Their backgrounds, their motivations, their loyalties and their intelligence all affect the way in which they present in the witness box. A compliant witness is relatively straight forward. A difficult or hostile witness is not.
Because of this, it is essential to have mastery of the tools and techniques that exist to deal with witnesses who are unhelpful, unwilling, or unable. Unless you have these tools in your kit, evidence that is important to your client’s case may not be aired in court.
This paper, deals with some of the common problems encountered with difficult and hostile witnesses. We primarily focus on refreshing memory and hostile witnesses. We also cover the issues that can arise when swearing witnesses in – often the first sign of problems to come!
Each of these areas can cause significant anxiety because people are unfamiliar with the rules and processes that apply to them. We hope that practitioners – especially relatively inexperienced practitioners – likely to encounter witnesses who are difficult or hostile find this material helpful in outlining the relevant law and the correct processes to use. This should smooth the way for a more effective, and more enjoyable, presentation of your client’s case.

Content outline

• Having a witness sworn
• Refreshing a witness’s memory
• Hostile witnesses