“The Truth? You Can’t Handle The Truth!” – Part 1: Theory

Giving evidence as a witness is a stressful experience, even for planners and others who are used to giving evidence in hearings or at public inquiries. But there are some things you can do to make your experience of giving evidence much easier.

There are plenty of practical tips that can be given about the mechanics of giving evidence and the importance of non-verbal communication (i.e. how you say things, not what you say).  But it might be worth first analysing what’s really going on when a witness is giving evidence before we think about how that witness is going to give their evidence.

When witnesses are giving evidence, whether in an inquiry or in court, a number of different dynamics and relationships are in play and all of the people involved are working to different agendas.  In my view the dynamics are:

• Between the witness and the advocate asking the questions at any given point;
• Between the witness and the tribunal;
• Between the questioning advocate and the tribunal;
• Between the two advocates;
• Between the witness and the public gallery; and
• Between the advocates and the public gallery.

When I’m asking my own witness questions, I’m trying to give my witness a platform from which they can project their authority and personality on to the decision-making tribunal.  I want to give them as much of an opportunity as possible to convey to the decision maker how much reliance can be placed on their observations, knowledge, interpretations and judgements.  I am giving them the chance to work the dynamic between themself and the decision maker.

Part of that is (hopefully) conveying to the decision maker the level of trust and reliance that I as the advocate place upon that witness’s observations, knowledge, interpretations and judgements.  I am trying to ask questions in such a manner as to imbue the witness>tribunal dynamic with at least some of the (hopefully) positive dynamic between me and my witness and vice versa when when dealing with my opponent’s witnesses.

The way in which I ask questions of the witness (and how I react to and deal with their answers) affects the dynamic between me as the advocate and the tribunal.  This is important, because effective advocacy requires that the tribunal feels able to vest its trust in me as an advocate, the submissions that I am making (and by extension, the case I am putting forward).  This dynamic is also in play when I’m cross-examining the other side’s witnesses.

The tribunal’s perception of the two (or more) advocates is affected by how witnesses give their evidence and how witnesses’ evidence is handled by each of those advocates.  And of course the wider body of people present (members of the public, others from your own team etc.) will all have their views on the witness, the advocates and everyone else involved in the process.

But what are the agendas?  Well, each witness wants to give their evidence as accurately and compellingly as possible.  Their advocate wants that too, although that isn’t the limit of the advocates’ agenda.  Through the witness’s evidence the advocate is also trying to set up their closing submissions and undermine their opponent’s case.  The opposing advocate also wants to try to set up their closing speech and undermine their opponent’s case.  Neither advocate really wants to antagonise the decision maker.

Witnesses (and sometimes advocates – sometimes perhaps even decision makers, even if only a little) may also have an element of not wanting to antagonise (or perhaps even try to impress) others in the room, for example influential others (e.g. the line manager or local member who has come to watch for an hour, or the Director of the lay client company) or vociferous members of the public.  Being aware of these tendencies to want to impress bodies other than the decision-making tribunal is important, but ultimately witnesses and advocates should be primarily concerned for the most effective way of advancing their case.

Don’t forget the agenda of the decision maker – trying to keep to some kind of timetable.  Easily forgotten, especially when locking horns with the other side’s advocate, but witnesses who ramble on…and on…and on…causing time estimates to become woefully inadequate often damage the essential relationships and dynamics they have otherwise tried so very hard to establish and maintain.

That’s plenty of theory to be getting on with.  Next time – practical tips for witnesses and some ‘do’s and don’ts’ of giving evidence.

Scott