The fundamentals in witness preparation: UK and State-side
The rules are less prescriptive and less strict in the land of the free, writes Mark Solon
George Bernard Shaw described England and America as 'two countries divided by a common language'. That division extends equally to the two countries' legal systems and their approaches to witnesses preparation.
An English barrister or solicitor is more constrained than their counterpart American attorney when it comes to preparing a witness for their day in the spotlight - whether that be in a courtroom or arbitration. As Ben Holland, a partner in international dispute resolution in the London office of US firm Squire Patton Boggs, explains, that stricture comes not from legislation, but from the conduct rules of the two English professions.
It is, he says, driven 'by the principled concern of English lawyers that if you have any meaningful discussion with a potential witness of fact or expert opinion, there is a risk that they won't give an authentic, but a schooled account.' It is 'a long-standing rule' that 'evidence should, as far as possible, be in their own words,' he says.
Under the Bar Council's code of conduct, barristers 'must not rehearse, practise with, or coach a witness in respect of their evidence'. Neither are they permitted to 'call witnesses to give evidence or put affidavits or witness statements to the court which [they] know, or are instructed, are untrue or misleading'.
However, they are entitled 'to draw to the witness's attention other evidence which appears to conflict with what the witness is saying and [they] are entitled to indicate that a court may find a particular piece of evidence difficult to accept'.
The rules for the conduct of solicitors, contained in the Solicitors Regulation Authority's handbook, make similar provisions. Solicitors must 'not attempt to deceive or knowingly or recklessly mislead the court' or attempt to influence a witness when taking a statement, tamper with evidence, or seek to persuade a witness to change their evidence.
The court has also noted in R v Momodou EWCA 177 (2005) that a witness should give their 'own evidence, so far as practicable uninfluenced by what anyone else has said'.
The court approved 'pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants.' It went on to say that that does not involve 'discussions about proposed or intended evidence.'
Hierarchy of priorities
But, what does this mean in practice? How far can you go? In preparing the case, Audley Sheppard QC, co-head of international arbitration at Magic Circle firm Clifford Chance, explains that you can go through your client's case and their documents and that of the other side and get your client's comments on them. When the hearing is approaching, he says, there is a 'hierarchy of priorities' that the witness should know. Sheppard continues: 'Most people would tell the witness that the most important thing is that they know their statement and every document referred to in it.
'You would tell them that they will be asked questions about what the other side says and that they should read and be familiar with the whole of the trial bundle.'
In addition, you can, he says, tell the witness the obvious things like the layout of the room, where to sit, to listen to the questions, to speak slowly and clearly, and to look the judge or arbitrator in the eyes.
'You may also tell them what the other side's lawyer and the judge or arbitrator are like,' he adds. 'I tell clients to treat [the hearing] like they're making a presentation to a sceptical board of directors. They aren't against you, but they don't want to invest in your project, so you need to persuade them'.
While State-side, taking as an example the New York State Bar Association, the rules are less prescriptive and less strict. The only prohibition is that a lawyer must not 'participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false'. As Holland notes: 'US lawyers don't have the same constraints and they have a greater opportunity to prepare a witness. They can engage with the witness about the substance, not just the form, of their evidence and the best way to give it, and can rehearse it with them so that they are word-perfect. In the US it might even be considered negligent if a practitioner did not do so.'
Where you are involved in an arbitration with little connection to England, but where the team of lawyers on one side are all English and on the other side American, says Holland, it can create an 'awkward tension'. Though he points out that there is a 'fix' to level the playing field - you would just include a US lawyer on your team.
But, adds Sheppard, there is a debate to be had about how far the prohibition on English lawyers goes. 'It certainly exists for the English bar and for court work; it arguably applies to solicitor advocates doing English court work, but it is debateable whether it applies to English lawyers doing international arbitration'. And, in any event, he says: 'The difference is not really that significant because neither of us can tell a witness to lie or create an answer for them to give in the hearing.'
Though one says 'potato' and the other 'potahto', there is no need to 'call the whole thing off'.
Mark Solon is chairman of Wilmington Legal and founder of Bond Solon