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In factual disputes, the key evidence on which a case can succeed or fail may be the given by the witnesses. Their credibility is key, but what makes them credible? (Sorry Benedict fans, whilst a Sherlock like approach may assist with dealing with cross examination, this particular Cumberbatch has nothing to do with Sherlock.)
The way in which a witness will give evidence and the way in which they deal with the stress of cross examination will vary from witness to witness. However, there is much that can be done throughout the litigation process to make the cross examination process easier for the witness and for it to really highlight the basis on which the case is being forward.
Judge Simon Brown QC in Excelerate Technology v Cumberbatch and Red Foot Lexis Citation 6 sets out authorities you need to be aware of when thinking about witness credibility and also highlights how those factors play out in practice.
The key point to take away from this judgment is the need for practitioners to ensure that a seamless approach to the evidence is taken throughout the proceedings and that any inconsistencies are uncovered and dealt with.
Inconsistencies may arise between disclosure and the pleadings, witness evidence and disclosure, witness evidence and the witness evidence from the other side. Dealing with inconsistencies at an early stage, checking that evidence is being adduced which clearly should be available and ensuring that the witness is aware of all the relevant contemporaneous documentation will make that witness’s experience in cross examination that bit more bearable and will lessen the stress of worrying about them.
Judge Simon Brown QC decision is a must read decision for those working with witnesses but if in any doubt about what you are aiming for read his comment at para 18:
By contrast, the Claimant’s witnesses presented themselves as straightforward and open in all their dealings. The key witness, Beth Evans, was unshaken in her evidence and displayed a complete forensic command of all the material she has had unearthed and pieced together. She is a very impressive executive and witness.'
LexisPSL DR subscribers can read the full analysis of this decision which includes the appeal decisions. Click here for a free trial.
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Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
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