Opinion: Witness familiarisation a must

by 10 Feb 2014
In 2012, two Russian oligarchs faced off across a courtroom  in the Royal Courts of Justice.  Boris Berzovsky was suing Chelea F. C. owner Roman Abrahmovich for the best part of $NZ7bn, claiming that he had been intimidated into selling shares in oil giant Sibneft at an enormous discount.  The case was squarely based on the credibility of the two protagonists. Trial judge Mrs. Justice Gloster found Berezovsky to be “an unimpressive and inherently unreliable witness, who regarded the truth as a transitory, flexible concept”  Abrahmovich  was, on the other hand, a “truthful and on the whole reliable witness”.
Given that the two men were, in many respects, peas from the same pod, both giving evidence through interpreters about events some years previously when Russia was at the height of robbing the corpse of the former Soviet Union, what was it that enabled the Judge to decide between the two?  Was it that one was in fact telling the truth, or  that the other was unable to get his version of the truth across?
Since 2005 the familiarisation of witnesses with the Court process has not only been permitted, but  welcomed, according to the Professional Standards Committee of the Bar Council.  In promulgating guidelines to deal with familiarisation, the Bar Council recognized that “such arrangements prevent witnesses from being disadvantaged by ignorance of the process or taken by surprise at the way it works, and so assist witnesses to give of their best at the trial or hearing in question without any risk that their evidence may become anything other than the witnesses’ own uncontaminated evidence”
Abrahmovich went through an independent formal witness familiarisation programme prior to his evidence, Berzovsky did not.  According to the company that provided the programme, Abrahmovich was trained in the very areas which the trial judge found so important in her assessment of credibility. He was taught not to guess, to answer questions concisely, to use his own words, to ask for any question he did not understand to be rephrased and thoroughly familiarised with the process in a way that was completely acceptable to the Courts. This included mock cross-examination on a scenario unrelated to the evidence he would give at trial.
A joint study by the Universties of Leeds and Liverpool found that witnesses who had received advice about the process of cross-examination prior to giving evidence “were significantly more likely to provide a correct response to cross-examination questions”
New Zealand lawyers wishing to prepare witnesses have little guidance as to what is acceptable.  Clearly coaching is prohibited.  Coaching  can be loosely defined as training witnesses how to answer questions on the evidence they are to  give.  But there can be no objection to counsel giving advice as to the basic requirements of giving evidence nor procedure in court.  However, there is a real risk of contamination, when familiarisation is conducted by counsel involved in the case.  That is recognized by the U.K. Bar Council  guidelines, which require familiarisation to be conducted by counsel without any personal knowledge of the matters in issue in the trial or hearing.  A record of the programme must be kept, and none of the materials may have any similarity to the issues in the proceedings. The guidelines apply to both lay and expert witnesses, with former Lord Chief Justice and Master of the Rolls Lord Woolf saying that, in his opinion, it was critical that expert witnesses attend such a programme.
Properly conducted witness familiarisation enables a witness to feel more at ease in an intimidating environment and thus give a better account of themselves.  Awareness of the requirements of oral evidence and how questioning is conducted is significantly more likely to lead to the right answers being given.  The stakes will not always be as high as with Abrahmovich, but the outcome is just as important; familiarization improves the odds of getting it right.

*Ross Burns is a director of Litigation Preparation Services Ltd.