The English Courts are almost unique in Europe, placing a very high value on oral testimony from witnesses of fact as part of litigation. In many instances, a case may be won or lost over the credibility of a key witness.

Having said that, this is not always the case. It is entirely possible to rely on a witness’ written statement as “evidence in chief” and your witness may not need to be cross-examined by the Advocate (either a Solicitor, Solicitor-Advocate or Barrister) acting for the other party to the dispute.

It is also likely that your witnesses will know whether or not they are needed to give evidence at Court at a relatively early stage in the case. So, having identified who your witnesses or going to be or, should you be called as a witness yourself, what happens next?

Witnesses should be willing to voluntarily attend at Court to give evidence. However, in practice many witnesses who were perfectly willing to provide a statement to assist in the preparation of a case may undergo a change in opinion when it comes to actually standing up in court, which remains a sobering prospect.

This fear is exacerbated when you consider that witnesses can be forced to attend at court to give evidence if you absolutely need them to. Litigants can serve a Witness Summons, a document requiring a witness either to attend at Court in person or produce documents. Should they refuse to do either, they will be in contempt of court and liable to a fine or even, in extreme circumstances, imprisonment (Although this will only apply to cases in the High Court.)

This may seem like taking a sledgehammer to crack a nut, and it should be borne in mind that forcing a witness to do anything, let alone attend at a Trial, could lead to the evidence they provide being less than satisfactory. However, it highlights a very important practical issue when preparing a case or offering to provide a witness statement in a case before the courts: make sure that the witness is aware that there is every chance that not only will they have to give a statement, they may well have to stand up in court and be cross-examined on what they have said.

Witnesses must know what they’re letting themselves in for. Unlike the United States system, only one civil action enjoys the right to a jury trial in English Law – Defamation. Unless you or your witness has been part of a Jury in a criminal trial, it is very difficult to appreciate the atmosphere in an English Court, which is, ultimately, part of an adversarial system. The best advice for anyone due to attend at court as part of any case is to spend an afternoon watching either a civil or criminal hearing at which witnesses give evidence; most local courts will agree to visitors in the public gallery.

Whilst the “batting order” of the Trial itself is designed for flexibility, it should begin with the Claimant’s Advocate making an opening speech, the Claimant themselves giving evidence in the witness box, the Claimant’s Advocate presenting evidence via examination of their Witnesses, and then the Defendants going through exactly the same process before each party gets a chance to make a closing speech, after which Judgment is usually given and any necessary orders made.

Taking the witness stand is something for which you should be prepared. However, there is a fine line between being prepared and being “coached” by an Advocate, which is a criminal offence. You are more than entitled to go over what will happen with the Solicitor for the party on whose behalf you will appear, but cannot give evidence from a “script”.

The more calm you can remain, the more likely you are to be a better witness for the party for whom you are giving evidence, and give the opposing Advocate less opportunity to discredit you. In practice, however, the best you can do is to understand what you are going to say fully and stick to your story. If you can’t remember every facet of your testimony, never be afraid to say “I can’t remember” or “I don’t know”, rather than be trapped into giving an response to a question which you simply cannot answer.

Remember that you are expected to be able to tell your own story in your own words with minimal prompting. That being said do not be afraid of asking to refresh your memory by referring to your witness statement; you are allowed to do so as long as the other parties are made aware of it. Even if you still have difficulties and don’t perform as well as expected, a good Advocate can still get across the points you may make by referring to other evidence.

Despite preconceptions, there are limits on what can be put to you by the opposing Advocate. Knowing what is going on “behind the curtain” may make it easier to realise what they can and can’t get away with. The most stressful part of the proceedings for a witness will be cross-examination.

The Advocate will be looking to accomplish a number of objectives in cross-examination: to obtain further information from you, to demonstrate to the court that you are wrong or mistaken and to attack your credibility. However, attacking your credibility will usually mean suggesting that you are not impartial or that you recollection is subjective rather than suggesting that you are lying, which is very rare.

There are a number of tactics that can be employed to achieve them, some more underhanded than others. However, it is never in the Advocate’s interest to completely destroy you in the eyes of the Court, as there is every chance that they may become a victim of asking “one question too many”, by putting you in a position where you cannot escape from the conclusion he or she is trying to draw, only to have you escape by providing an answer that is obvious to you, but which they didn’t think of.

Equally, the Advocate should not be looking to “bully” you. Whilst it is acceptable for them to insist on an answer to a “yes or no” question, they cannot stop you from giving an explanation to a question which has called for one. Always remember that the Judge is there to assist the witness, and as such can be asked if any question needs to be answered. Good witnesses, however, will not lean on this crutch too frequently.

Finally, an Advocate cannot ask you questions which would take you “forward in time” and ask you to speculate.. Whilst it can be suggested that you may be mistaken as to the facts in dispute, an advocate can never say “I have a witness who will tell me something else.”

In closing, if you are going to appear as a witness, it is important that you appreciate that it’s not always simply a case of providing a statement. Thinking outside, and more importantly in this case, inside the box is highly recommended.