Be prepared - but not that prepared

Giving oral evidence to the court as an expert witness, or as a witness to events during a project, can be daunting, particularly the first time. The prospect of putting your reputation on the line in an unfamiliar environment is enough to give even experienced experts pause for thought.

Televised dramas showing witnesses being shouted at by a purple-faced lawyer banging his fist on the table for emphasis persist from the other side of the Atlantic. Even our more restrained British dramas tend to portray cross-examination as a lawyers' game to trick witnesses into proving that barristers are much too clever for the average man on the street. These portrayals are far from the truth but the experience of providing evidence in court is stressful and to some extent unpleasant for any witness.

Most expert witnesses would very much appreciate it if the lawyers were to organise a dress rehearsal of the evidence as a trial approaches - but this is not allowed. It is not acceptable for lawyers to coach witnesses by rehearsing their evidence or making suggestions as to what the witness should say and how the witness should say it. The court's main concern is that a witness' evidence should be his or her honest, independent recollection of events (or independent opinion, in the case of an expert witness) and expressed in his or her own words. Judges are sympathetic to nervous witnesses but this is a matter of public policy and no exceptions can be made.

On the other hand judges, barristers, solicitors, experts and other witnesses say it is a good idea to ensure witnesses are familiar with the process of giving evidence and are not disadvantaged by the unfamiliar surroundings and confusion about what is expected of them.

Know your surroundings

Witness familiarisation can cover the layout of the courtroom, the roles of the parties and the experience of giving evidence, including answering questions put to you by a barrister, reading and properly understanding documents put in front of you and remembering to address your answers to the judge. None of these really come naturally to anyone.

Several organisations provide training of this kind. Many witnesses have attended such training before their first appearance in court and, no doubt, many witnesses, parties and courts have benefited from it.

It is not acceptable for lawyers to coach witnesses by rehearsing their evidence

The difficulty lies in identifying the point at which sensible preparation for witnesses - not only allowed but encouraged by the judiciary - becomes forbidden witness coaching.

The Court of Appeal recently considered this question in the case of R vs. Momodou, arising from the disturbance in 2002 at Yarl's Wood detention centre. The defendants were convicted of offences in relation to the disturbance and appealed on various grounds, one of which was that the detention centre officers had been coached in their evidence.

The officers had attended a witness familiarisation course. Course materials allegedly used for this training were shown to the court. The "invented" facts were almost identical to the events during the Yarl's Wood disturbance. The court considered such training to be "utterly flawed" and produced useful guidance about the difference between witness coaching and witness familiarisation. In Ultraframe (IK) vs. Fielding & others, the judge confirmed that the general principles set out in Momodou also apply to civil proceedings.

The golden rule shining out from the Momodou and the Ultraframe judgments is that the materials used for witness preparation must not be similar in any way to the issues in the trial at which the witness is to appear. In Ultraframe, the judge pointed out that this means witnesses must not be allowed to invent their own facts to use for discussion and mock cross-examination. If several witnesses in the same proceedings attend a course together, there is a risk that the discussions and exercises will be influenced by the facts and issues involved in the real proceedings, without the knowledge of the course leader. It is better to have witnesses attend courses separately

The Court of Appeal did not forbid the use of witness familiarisation courses but set out practical guidelines (see Factfile).

Following the Momodou and Ultraframe judgments, the line which must not be crossed is now clearly visible and there is no reason why any witness should enter into a courtroom unprepared.