Witness statements should be obtained as soon as possible after a loss. The likelihood of locating witnesses is highest immediately after an incident and diminishes over time. It will also be more likely that a precise and detailed statement can be obtained while the witnesses' recollections are fresh.
Do not wait until preparing for trial to obtain witness statements. Statements should be obtained in sufficient time to be used at mediation or pre-trial. Get them as quickly as possible. Obtaining liability statements after notice of a pending action may help discourage further litigation. The information contained in the statements can also be helpful on examinations for discovery.
Statements should generally be obtained from all liability witnesses. Do not rely on the statements included in the police notes, as these are frequently incomplete or unclear and often inaccurate. It is important to iron out any inconsistencies at the outset.
Statements should also be obtained from any potential damages witnesses, such as neighbours, co-workers or friends. The identity of these potential witnesses can be obtained at examinations for discovery. Obtaining statements from these witnesses should be undertaken as soon as possible, and in any event well in advance of mediation or pre-trial.
Where statements are obtained by an independent adjuster, they should be reviewed carefully to ensure that they are complete and unambiguous. Review the statements carefully for the following:
- Does the statement pin down the liability issue adequately?
- Is additional information required?
- Is there scope to challenge the witness on cross-examination that should be addressed at the time of obtaining the statement?
If any additions or revisions to the statement(s) are required, they should be undertaken promptly and a revised statement should be prepared and forwarded to the witness for review. The witness should be asked to confirm the revised statement's accuracy. If possible, the revised statement should be signed by the witness. The statement can also serve as an aide-memoire.
Use of Statements
Rule 31.06 (2) of the Rules of Civil Procedure requires disclosure of the names and addresses of potential witnesses. A summary of the evidence of the witness must also be given. The statement itself is privileged and except in rare circumstances, a copy of the witness statement should not be produced to opposing counsel. It is essential that the statement(s) be listed in Schedule B of the Affidavit of Documents.
The statement can be referenced at mediation or pre-trial, where it will retain its privileged character.
The statement can be used to assist in preparing the witness for trial. It is important, however, to ensure that the privilege attaching to the statement not be inadvertently waived. For example, if the witness states that they reviewed the statement to refresh their memory for trial, opposing counsel may be entitled to compel production of the statement. Accordingly, counsel should use the information in the statement to prepare the witness, without necessarily putting a copy of the statement before the witness.
Should the opposing counsel call the witness at trial, the statement can be used to cross-examine the witness.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.