With the war to overhaul disclosure raging on, a new battleground already seems to be emerging. Leading the charge is the newly-appointed president of the London Solicitors Litigation Association (LSLA), Julian Acratopulo.
Clifford Chance (CC) partner Acratopulo, elected LSLA president in April, was quoted as saying witness statements needed reform.
In an interview with Litigation Futures, he said: ‘Witness statements were introduced to reduce the need for oral evidence at trial. They were designed to promote efficiency, but there are competing views on their value, given their length and the purpose for which they were introduced.’
It seems Acratopulo is not alone. Litigators – who love a bit of a moan – have been quick to voice their concern over the suitability and effectiveness of witness statements at the moment, albeit not always for the same reasons.
Mona Vaswani, a banking litigator at Allen & Overy, says: ‘My issue is with the over-lawyering of witness statements. I have been in cases where the statements have clearly been written by the lawyers and not in the witnesses’ own words, which is problematic.’ She warns, however, against being too heavy-handed: ‘Having said that, if you were to go back to more rudimentary witness statements that would have its own problems. It increases the likelihood of witnesses saying things that no-one had prepared for.’
Damien Byrne Hill, UK and US head of disputes at Herbert Smith Freehills, agrees with the over-lawyering assessment, and offers a courtroom anecdote: ‘One example of bad practice I have seen is where a witness merely repeats in their statement the contents of emails rather than providing any evidence of their actual recollection. The court can read the email itself.’
Aside from deviating from the original aim of convenience, there are some very practical issues with lawyers meddling in witness statements. For a start, the typically strangulated prose of a lawyer can make the statements quite unnecessarily long. For the resource-sapped judiciary, any opportunities to boost efficiency must be taken.
Secondly, wasted time inevitably equals wasted costs. However Byrne Hill believes that is one area where the court will be able to step in. ‘Usually the court doesn’t get involved, but costs is the one area where the court will have a role because they have to make an assessment.’
As for the solution, the necessity of striking a balance rules out the possibility of any root and branch upheavals. Vaswani suggests a more subtle solution – that of reminding lawyers of their responsibilities.