Truth is of paramount importance when giving evidence - and considerable work is required by a witness to ensure that it is told.

There can be no doubt that documents play a huge role in the determination and resolution of reinsurance disputes and that they therefore play a considerable role in helping to avoid those disputes or bring them to an early conclusion.

If a case reaches trial or a final arbitration hearing, however, documents alone will not win or lose a case. What documents say will be largely uncontroversial. What they mean may still hang in the balance. Other evidence may well swing that balance. That other evidence is, however, less predictable than documentary evidence at that stage and the way in which oral evidence is presented and how witnesses perform and how they come across to the finders of fact, can have very significant and decisive influence on the outcome of the dispute.

It is therefore essential when determining the likely outcome of a case to have a fair idea of how one's own witnesses will perform. It is obviously harder to know how the other side's witnesses will bear up to the strain of cross examination.

Oral evidence is frequently the unknown factor that requires an estimate of success for an otherwise good case to stand no higher than around seventy percent and, correspondingly, allows a poor case to have a chance of success higher than zero.

Good underwriters do not necessarily make good witnesses and poor underwriters do not necessarily make poor witnesses. The disciplines are very different. It is also true to say that someone who is a good witness one day will not necessarily be a good witness on another. What is therefore important, is that the witness has done all that is possible to prepare him or herself for the mental challenge of testifying.

Preparation is the key
The preparation must start early. Ideally the preparation starts when each transaction is underway. Carefully maintained notes and aide memoires as well as properly organised files can assist in memory at a later date. Evidence is often given years (possibly decades) after the events in questions have taken place.

Once a dispute has arisen, a potential witness needs to ensure that his or her memory is as complete as possible and accurate. There is a danger that a witness can go off at half cock; have a story suggested to them and then start to believe that it is true and then struggle to fill in missing pieces of information. This can result in disaster when cross examined later. Holes in memory and inconsistencies in the story will be exposed. Credibility will be lost.

It is of the utmost importance that witnesses tell the truth. It is of utmost importance that witnesses spend time seeking to recall what actually happened.

It is of no use at all to lawyers or to the parties that they represent, if witnesses formulate stories that they think might be true and which they think are likely to support the party's position. The consequence of such a situation can well be that a case is fought and lost which never should have been fought at all; at considerable expense. Alternatively, arguments may be pursued which ultimately fail, when other arguments, less attractive at first flush, ought to have been presented with greater chance of success. Additionally, incorrectly recalled evidence can cause the parties to a case to move further apart and can greatly reduce the chance of settlement.

To express it another way, witnesses evidence may appear harmful to the case that their party is trying to put forward. This is of no concern to the witness, whose only concern must be to tell the truth. The lawyers, who are highly paid (well relatively at least), highly educated and highly trained have the responsibility to take the witnesses story and to massage and spin it to suit the best possible case that they can for their clients. If that best possible case is somewhat less than the case that they or the witness has expected to be argued; so be it. Lawyers can work with the facts to present them in the best possible way. They cannot, however, deal with falsehood which removes from them the very basis of their arguments and leaves them with nothing.

The whole truth
The first step therefore, in the preparation by a witness to give evidence, is to ensure that the story that is to be told is the truth. Ensure, at the earliest stage, that all the materials necessary to assist in recollection are available. Files, personal archives, diaries and notebooks need to be identified and retrieved. A witness ought not to be surprised at trial by the sudden production of a document which, in any way, alters that recollection.

It is often a temptation for a witness to ask a lawyer to express the evidence in a witness statement and while there is no harm in a witness asking a lawyer to set out his or her statement following an interview, it is essential that the words used and the story told are the words and story of the witness. This is essential for a number of reasons. Credibility is a prime reason. No trier of fact will believe a statement expressed in legalese when it is supposed to be the testimony of, say, a monosyllabic accountant who, when testifying, expresses himself in simple terms rather in complex syntax. The words simply do not ring true. Secondly, a statement expressed in the words of the witness is more likely to aid later recall in the final preparation to give evidence at trial. Finally, one is more likely to withstand tough cross examination on a statement expressed in words that one can easily endorse because they are one's own.

Once a statement is made and exchanged with the other side, care should be taken in reading through the other party's witnesses' statements. Any assistance that they might provide in exposing errors or failures of memory should be taken. Any corrections to statements that are necessary should be made at the earliest possible stage.

Before being subjected to cross examination at trial, a witness must first read and re-read the statement served on his or her behalf. A thorough review of all documents that could have a bearing on the cross examination is also indispensable. The witness must be comfortable with the facts.

A lawyer must not tell a witness what to say. While politeness and common sense dictate that your side's own lawyer ought to be made aware of any issues in advance of the other side, the evidence has to be the witness's evidence and must be the truth. A lawyer can, however, assist the witness by giving direction on the techniques of testifying and, in order not to become confused by cross examination, a witness should avail him or herself of such assistance, for to become confused is often to give evidence that is other than the truth.

Truth is of paramount importance when giving evidence. Considerable work is required by a witness to ensure that it is told.

This Special item appeared in issue 110 of JTW News - November 2006

Author: Clive O'Connell - Barlow Lyde & Gilbert