When employers are faced with an employment case one of the key factors that will affect their prospects is the strength of their witness evidence. So what can you do to help your company’s witnesses prepare for the hearing?
Know their witness statement inside out
Before the day of the hearing each witness will need to produce a written witness statement. This is their side of the story. Although it is often produced by the company’s lawyers, it is essential that it is in your witness’ own words and that they are happy with everything in it.
They should be made aware that they will be cross-examined on what their statement says and that their credibility as a witness will be damaged if it looks like they don't know what it says (or worse if it looks like it was written for them). Witnesses may be asked to read out parts of their statement at the hearing and they will not look credible if they stumble over unfamiliar phrases when they are asked to do so.
Make sure your witnesses know that when they get to the hearing they will need to swear an oath to the court/tribunal that the evidence they give is the truth. Giving false evidence can amount to an offence. So witnesses must only include information in their statement that they know to be true.
Consider witness preparation training
Witnesses must never be coached to give their evidence in a particular way. However, witness preparation training can be invaluable in explaining to witnesses what they can expect at a hearing and techniques the other side may use in cross-examination. Some witness preparation training includes a mock cross-examination session. You may want to consider this, particularly in high value cases.
Impress how important the documents are
The court/tribunal will compare witness statements to contemporaneous documents to test if what the witness has said is credible. So if there are inconsistencies it is important that your witness knows what they are and what to say about them.
Ensure they know their role
A witness' role is to explain the facts based on their first-hand knowledge of what happened. They are not an expert so should only give evidence on the things they actually know about.
Make clear their limits
Witnesses sometimes get into difficulty on the witness stand by trying to persuade the other side that the company is right and by getting into arguments with their cross-examiner. This can make them seem aggressive and defensive. Witnesses should be made aware that their role is to be an honest, credible witness of fact to enable the judge to make a decision. So, when giving evidence, they must simply answer the questions put to them rather than trying to argue your side’s case.
Even the most senior and self-assured witnesses say the process of giving evidence in court for the first time is one of the most daunting experiences that they have faced. But being prepared, knowing their statement, their limits as a witness of fact, and their role, will help them to remain calm and ensure that they are in a position to perform at their best.
Natasha Adom is a senior associate at GQ Employment Law