Evidence in chief part 2
Evidence in chief is when you examine your own witnesses before they are cross-examined by the other side. Last week we considered evidence in chief in criminal cases. One issue was how important it is to see witnesses giving their evidence so that you can judge them, before starting to cross examine.
That approach is a distant memory in most civil cases now. The civil procedure rules deal with evidence at CPR part 32. The court is given wider powers to control the way evidence is given (CPR 32.1). Although the general rule is that facts are proved at trial by oral evidence given by witnesses (i.e. live spoken testimony), CPR 32.2, in fact the key provision which governs what happens in civil cases is CPR 32.4. That provides that the court will order parties to serve witness statements of the oral evidence they intend to rely on at trial. (Or witness summaries if they cannot obtain statements from the witness). The witness statements are in writing and contain the evidence that would be allowed to be given orally. It is up to the court to decide how the procedure of exchanging statements is undertaken. Sometimes the exchange will be simultaneous, sometimes one party is ordered to put their evidence in first.
The aim of witness statements was to avoid surprises. In the old days you would know what the other side's case was from its pleading (a statement setting out its position). However evidence would usually be much more detailed. You would first know what that contained as it was being given. Although you would know roughly what the likely thrust of the evidence was going to be, and in respect of particular witnesses what areas you are likely to have to cross examine them on, you would not actually know what their evidence was going to be until you heard it given. This was thought to be unsatisfactory. The view was that it was better that everyone should put their cards on the table before the trial.
Witness statements are supposed to be insofar as possible in the witness's own words. However that is a principle easier to state than to follow. Even a solicitor who is taking a statement from a witness and is a stickler for trying to do things properly will find that in the process of asking questions and discussing things with a witness to find out his or her views, that to some extent witnesses up adopting words that would not normally be used by them.
CPR 32.5 provides that (save where order to the contrary) if the party serving the witness statement wants to rely upon it then the witness must be called to give evidence. However his witness statement stands as his evidence in chief unless the court orders otherwise. Whilst the witness may amplify the statement and give evidence in relation to new matters arising since the witness statement was served the court will only give permission for this if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement. Thus in practice in civil cases save for new matters and occasional supplementary questions, the evidence just consists of a witness saying "I confirm my statement as my evidence in chief" (having been sworn and having given their name address and occupation). Although the judge can order otherwise, this is what happens in virtually every civil case.
The advantage is that cases take less time (it is a lot quicker just to confirm a witness statement rather than give evidence in chief in the old-fashioned way which could take considerable time). When a witness is actually giving evidence orally they tend to use their own words. It is often easier to judge what a witness is like by hearing them tell their story rather than just hearing them cross-examined. However in general that does not happen in civil cases. Evidence in chief is thus dramatically different as between civil and criminal work.