Ethical Witness Preparation

The following is adapted from a Bar Association CPD presentation by the authors on 19 March 2024.

 Relevant ethical rules:

The following are the relevant provisions in the Barristers Rule 2011 (Qld) which bear upon the conduct of counsel in conducting witness conferences, both at the conference and as a result of anything said in court about the matters canvassed in conference:

12. A barrister must not engage in conduct which is:

a. dishonest or otherwise discreditable to a barrister; 

b. prejudicial to the administration of justice; or

c. likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

…

25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.

…

68. A barrister must not: 

a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

b. coach a witness by advising what answers the witness should give to questions which might be asked.

69. A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

…

73. A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
74. A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.

…

78. A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client: 

a. has lied in a material particular to the court or has procured another person to lie to the court; or

b. has falsified or procured another person to falsify in any way a document which has been tendered; or

c. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.

Text treatment:

Scarce is the commentary in texts as to the approach, and methodology, which ought be adopted by counsel in conferring with witnesses prior to trial.

In “Advocacy in Practice” (5th Edition, 2011, LexisNexis) J L Glissan KC wrote ( pages 17-18):

… [T]he [case] narrative should be explored by question and answer.  How this is done will depend on the individual witnesses – some witnesses may need to be searchingly cross-examined, especially where they appear to be hedging or embellishing, or to prepare them for anticipated attacks.  From this you should build your own proof of evidence … [It is]useful to explain to witnesses, experienced or not, how to give evidence – not what they should say, but the mechanics of giving evidence.  This advice will include where to sit, where to look, how to address the court, appropriate clothes to wear and so on … [W]here the witness is likely to come under strong attack, it is best to recognise this in advance.  You should safeguard the case the witness is being called to support, and where possible, anticipate and shield him or her from unpleasant shocks and surprises.

Proper approach:

In our opinion the following 10 matters encapsulate the proper approach and methodology.

First, the overarching point of a witness conference is to prepare the witness to give evidence at trial necessary to prove your client’s case theory, and to that end make it as easy as possible for the judge to accept that witness’s evidence.

Second, the conference enables you, as counsel, to finalise the proof of evidence of that witness, enabling the opening of that evidence, adducing that evidence in evidence-in-chief and addressing issues which will be raised in cross-examination.

Third, the conference also enables the identification of documents needed to be tendered through that witness, or otherwise proved, to enable acceptance by the judge of the evidence of that witness, and other witnesses.

Fourth, the conference enables you to reassure the witness about the process and their evidence – in particular if unsophisticated in giving court evidence, or if emotional or  subjective – such that they are reasonably calm by the time it comes to give evidence at trial. Have them taken to court in advance to see the layout.

Fifth, and critically, the conference ought identify to the witness the propositions and documents with which they will be challenged in cross-examination, so that they can be ready to address such matters calmly, intelligently and comprehensively.

Sixth, in conference your mindset as counsel ought be to intellectually change sides, putting yourself in the position of opposing counsel cross-examining the witness.  That ought include detection of witness character traits (eg irritability, arrogance) which might provide cross-examination pathways to impugn their credit – including with expert witnesses. 

Seventh, in cases involving sharp issues of credit, or involving any witness of concern, inquire whether they have prior criminal or regulatory convictions, and whether they have recently – or at all –  posted on social media concerning the case issues. Independently, check their SM postings.

Eighth, the purpose of witness conferences, collectively, is to detect your client’s strong and weak witnesses, and potential case theory  weaknesses and evidentiary gaps, which in turn can inform inexorable settlement negotiations which will transpire before trial.

Ninth, address formal matters which will assist the witness, such as appropriate dress for court, whether they wish to take an oath or affirmation, the title of the judge if engaged in an exchange (“Your Honour”), the title of your opponent and you (“Madam”, “Sir”, “Ms Smith”), electronic hearing assistance available in the court by T-coil if required, date and time when they will be called, and court hours.

Tenth, for any witness, the ultimate issues for you as counsel are: “Will the testimony of this witness assist or detract from my client’s case theory?,” “Will the court repose confidence in the credibility, or reliability, of this witness?” and “Should – or need (eg adverse inference drawn, possibly, if not)- I call this witness?”

The mantra:

In our view counsel ought rehearse a mantra to each witness.  Not only does it comprise a check-list, but it constitutes a course of practice about which evidence can be given in the event of a complaint about counsel’s conduct, and if called upon to recollect – ordinarily well after the event –  how they managed the conference with a witness.

Our mantra is something along these lines:

“The purpose of me conferring with you is to discuss the detail of the matters about which you will be asked in court, in Evidence in Chief and Cross Examination. You must answer all questions.

Ethically, it would be quite wrong of me to tell you – and I will not tell you – what to say in answer to any question. I will be struck off as a barrister if I do that. But it is apt for me to discuss with you your manner of general expression in giving your necessarily truthful answers to any question asked of you by me, opposing counsel or the judge. 

Truthful answers may consist of a ‘yes’, ‘no’, ‘I do not recall’, ‘I don’t know as I was not present during that discussion’, and sometimes giving a more expansive explanatory answer – in particular to an open question by me in evidence in chief or a ‘no’ answer in cross-examination.

Be succinct, not wordy, in answering. Remain calm as possible and do not anticipate questions – wait for the direct question and answer it directly. You are fully entitled for question to be repeated, or re-phased so you know what is being asked (but you are not entitled to know why a question is asked) .

If the truthful answer to a question asked of you is one you consider embarrassing for you or unhelpful to our case, answer it without hesitation. Evasion thereof will be obvious to the judge and all lawyers and others present, and you will be required to answer anyway.”

A  means of underscoring same is to request the briefing solicitor pre-conference to write to the witness to the above effect. Alternatively it could be inscribed by you on a sheet and given to the witness at the outset, and spoken to.

The lessons:

The following are the overarching matters which will assist in staying within the bounds of the above rules.

First, study – and periodically re-study – the Barristers Rules. You are obliged to be familiar with and abide same.  Otherwise, take up another career outside the law.

Second, make it clear at the outset of a conference with any witness that their obligation is to tell the truth to the court, irrespective of their view as to whether that makes them look foolish or is unhelpful to the client’s cause.  That stated, prepare them by canvassing directly with them the matters with which they need give succinct evidence and will be challenged respectively. All that may lead to you not calling them.

Third, as counsel you are responsible for what happens in conference and court with your witnesses.  Do not be dictated to by an instructing solicitor who might prefer a more expedient course to ingratiate themselves with – by “coaching” – a witness as to what they ought testify at trial.

Fourth, avoid the otherwise expedient course of keeping non-client witnesses away from conference with your opponent.  Often, as counsel, you will advise that a conference with you ought be pursued with the opponent’s non-client witness. If such witness refuses to speak to you but speaks to the opponent raise that in cross-examination of them , and include a submission at close challenging their objectivity.

Fifth, remember that it is your professional reputation – with the court, and the Legal Services Commission – which is at risk should you be in any way involved in advising or condoning the illicit preparation or  “coaching” of a witness, or the adducing of tainted or perjured evidence. Do not go even close to the line. Develop an “invariable  conference practice” mantra, so if ever challenged much later as to your conduct, you can give admissible evidence of them.