You are interviewing a CFO about a procurement procedure relevant to a controversial transaction. The procedure was a good one, and suggests that the company has a good, robust, and systematic approach. So you ask: "and is that your normal procedure?" It is good for you if it is.

Is that leading? You have 1 second to decide. Can you reframe it in a non-leading way instantaneously? If 'yes', then stop reading and do something else useful. If not; keep going.

This was a leading question: albeit a subtle example. Why? The question limits the witness's perspective to a single proposition of 'normalcy'. The procurement procedure could be described in several other ways. It might be her invariable practice to follow it. Or her usual practice but in given situations, or an occasional practice. Or maybe this was the first time she had followed the practice. Offering just one option of 'normal' influences the witness and removes the full choice that she should have. It is easier to accept the single proposition than to negotiate a better phrasing with the interviewer. Do we know if the witness simply acquiesced to the proposition in the question in spite of a slight sense of unease? What word would she have picked if offered a truly free choice?

Can you think right away of a better alternative?

The simple convention is that you will do better with a 'how' 'what' 'why' question. Here, you might need 2 questions to get you there. How about 'have you followed that process before?' If 'no', we have an exact answer, and if 'yes', the next open question is now easy. ‘How often have you done so?' The evidence has now been elicited without circumscription, pressure or influence.

Click on this link if you would like to learn more about how to avoid asking leading questions: Trial witness statements under PD57AC.

According to SBP 1.3, human memory is not a fixed mental record but "a fluid and malleable state of perception" and is "vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration". Because of this, trial witness statements should be prepared in ways that avoid (as far as possible) "any practice that might alter or influence the recollection of the witness…" There's an honourable exception in SBP 2.6 for refreshing memory using documents created or seen when events were fresh in the witness’s mind, but otherwise the prospects for the old ways are distinctly gloomy. Dauntingly, SBP 2.4 states that it is "improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence".

There's a strong argument, of course, that Practice Direction 57AC is really nothing new at all, and that it's simply reminding us of the real purpose of a trial statement, i.e. to set out only the evidence that the witness can properly give during oral examination-in-chief.

If that feels hugely restrictive, you might also be wondering how on earth you will prove a case in future.

What if Witness A, for example, wasn't present at the relevant times or doesn’t remember anything significant? Preparing a trial witness statement is a waste of effort, that's for sure, because Witness A’s evidence isn't going to help you win. Instead, focus on proving your case with evidence from other witnesses or the documents alone.

And if you’re wondering where to put all the background information and argument and evidence commentary, think about using a chronology, a case summary or a skeleton argument. That stuff probably shouldn’t have been in a trial witness statement anyway.

Click on this link if you would like to learn more about Trial witness statements under PD57AC.