Traditionally, a statement, or proof of evidence as it was called, was taken from the client before proceedings commenced. It was used as the basis upon which the case was pleaded. More recently, rules were introduced requiring witness statements to stand as the witness's evidence in chief. When they came to give their evidence, after taking the oath, they would be asked simply to confirm that their statement was true and that they had no alterations to make. After only five minutes in the witness box, the witness would be offered up to the sacrificial altar of cross examination. Although these steps were introduced to save the court time otherwise taken in hearing the witness's unchallenged story given line by line from the witness box, when it could be written down and read at leisure, they did have their drawbacks:
A written statement could disguise any uncertainty a witness may have as to his or her evidence. On those rare occasions when the witness's credibility was at stake - as to what, for example, transpired at an important meeting of which no record exists - the judge would be deprived of seeing how confidently the witness described what went on
There was always some confusion as to the status of statements of witnesses who, when it came down to it, did not give evidence either because they, or their lawyers, had changed their minds. If the evidence had suddenly become favourable to the other side, could they rely upon the witness statement?
When all the evidence-in-chief was reduced to writing, cross-examining counsel would tackle witness after witness with no real opportunity for the other side of the story to emerge from the witness box. Persistent and repeated lines of questioning could give the oral evidence something of an unbalanced flavour.
But the real criticism is that although a witness statement may save some court time, the job of preparing a statement which contained all the evidence the witness would have given at trial is considerable and is unlikely to be embarked upon until absolutely necessary.
As a rule the standard trial-preparation timetable ordered by the Technology and Construction Court judges provides for witness statements to be produced after the expert evidence has been exchanged. So, nowadays statements are not taken at the beginning but at the end of trial preparation. In the main they are prepared by the lawyers rather than by the witnesses themselves as the lawyers have a much clearer idea of what they want the statement to say. This has two immediate consequences:
Inevitably the statement is couched in the language of the lawyer. Some judges outside the Technology and Construction Court take the view that as proceedings are conducted in open court, the witness ought, for the benefit of public onlookers, to read his or her statement out loud in the witness box. Notwithstanding the fact that construction cases tend not to attract much in the way of public interest, it is sometimes the case that unfortunate building-site operatives are required to read verbatim from a text prepare by someone with a somewhat different vocabulary from their own.
More fundamentally, the balance of the statement is tipped in favour of the client's case: its strengths emphasised, its weaknesses glossed over. A witness is less likely to contradict what has been written but rather take the view that if that is what the lawyers say they say, it must be right: that is, until they are put on the spot in the witness box.