Preliminaries
In advance of the hearing you will be given details of where to find the Court, time of arrival and who will meet you. The solicitor calling you will do his best to make sure that there are no delays in evidence being called but you may not be called into the witness box immediately. You may in fact be asked to arrive early, so that you may hear other witnesses or how the case is being argued before giving your own evidence. Normally you will be allowed to sit in Court before you are called as a witness except in criminal proceedings.

You should bring with you any relevant documents. However a bundle of documents will be made available to you once you enter the witness box. These documents will be numbered and you may be taken to individual pages and asked questions on them.

You will be called into the witness box by a Court Usher who will ask you to take the Oath or to Affirm. You will already have been asked to identify your religion, if any. You will be asked to read words from a printed card and, if swearing the Oath, to hold the relevant holy book in your uplifted right hand. This is of course a promise to tell the truth. You will then be asked to give or confirm your full name, address and occupation.
Examination-in-Chief

Examination-in-Chief may be quite short. This is because your written witness statement may already have been read and will be included in the Court bundles. The advocate (Barrister or Solicitor) acting for the party calling you will ask you some preliminary questions on matters dealt with in your written statement and will expect you to answer along the lines of what you have already said in that statement.

The advocate acting for the party calling you is not allowed to ask you leading questions, i.e. questions which suggest the answers, and will not challenge the evidence which you give. You therefore need to anticipate what evidence the advocate is seeking to draw out of you.
Cross-Examination

The advocate (or advocates if there are more than one opposing party) will then have the opportunity to cross-examine you. He/she will be aiming to advance his/her client's case and to undermine the opposing case. You may be asked questions intended to undermine or de-value your own evidence.

You will not have advance warning of these questions and they may not be limited to matters dealt with in your written statement. You may be asked questions on particular documents in the bundles. The advocate on your own side may not have already raised these questions with you. Preparation before you go into the witness box can therefore be important.

If your evidence is different from that of the witnesses to be called on the other side you may hear words like "I put it to you ...". These words preface the advocate putting forward his own witnesses' case with the suggestion that it is the correct one.

Attempts may be made to discredit your conduct, to suggest that you are biased or to highlight inconsistencies in what you have said.

Re-Examination

The advocate who examines you in chief will have the opportunity to clarify any matters where he/she feels that the answers which you have given under cross-examination do not fully reflect the evidence which you wish to give. This will not normally relate to matters which have not already been dealt with under cross-examination.

Preparation

If there are relevant documents, including witness statements (particularly your own), familiarise yourself with these in advance.

Make sure that you know where, when and whom you are to meet. Please arrive in good time so that you are not flustered. If you arrive early, it may enable you to have a good understanding of what is going on and perhaps have an opportunity to observe others. It will normally be necessary to have a telephone conversation with our representative late on the afternoon before the case starts. This is because the details of when the hearing will start and of the exact location of the Court may not be available before then.

Ask the solicitor who is calling you any questions which are troubling you as to where to go, what to do, how long you are likely to be needed, what documents to read, what dress is suitable etc.

If you are keen, consider attending the same Court on an earlier day to listen to another case. To do so will boost your confidence.

It is possible for you to receive training on being a witness. This is particularly helpful if you are worried about being in court, and will assist in familiarising you with the procedure. The training would be generally-based, and would not specifically relate to the case in which you are due to give evidence. This is because the 'coaching' of witnesses is not allowed. Ask your solicitor if you are interested in this.
Giving Evidence

Tell the truth. You will otherwise be committing a criminal offence and honest answers will help give you confidence.
Do not exaggerate or colour your evidence.

Listen to the question and answer that question. It is best to keep your answer brief and to the point, and you should only expand upon it if you feel that it is essential to do so.
If you do not understand the question, ask for it to be repeated or explained. If you need to look at any other document to enable you to answer a question, you should ask the Judge if you may do so.

The advocate calling you will normally intervene if you are asked a question which is inappropriate. If however you feel strongly that you should object to a particular question, you should politely ask the Judge whether you should answer it.

If you do not remember something, you should say so.
Do not lose your temper. Some cross-examiners set out to upset and annoy in order to unsettle witnesses. You must remain calm and polite.

In cross-examination, do not spend undue time in considering the motive or hidden meaning in a question. You should not appear defensive and should answer questions in a simple and straightforward manner.
When you first enter the witness box, point your feet at the Judge and face him/her. Turn your body to the advocate to listen to each question but each time face the Judge when giving your answer.

Body language can be important. If your evidence is given whilst seated, it gives a good impression if you sit erect. Please be conscious of where your hands are and keep them away from your face.

Speak slowly and clearly. If the Judge is making notes, keep an eye on his/her pen so that you do not proceed too quickly. It is appropriate to call a High Court Judge "My Lord" or "My Lady" or a County Court Judge "Your Honour", but it is sufficient to call the Judge "Sir" or "Madam". You can address the advocate asking you questions as "Sir" or "Madam", or by name if you know it.
Expert Evidence

If you are being called to give evidence as an expert, it is important that you should demonstrate your independence. It is not your role to win the case for the side that has called you. That side will be hoping that you will maintain what you have stated in your statement/report which will be included in the Court Bundles and that your evidence will be preferred to that of the opposing experts. It is often better to understate your views in examination-in-chief and to "firm up" under cross-examination. You should be open to consider opposing views and to explain why you do not agree with them.

Advance preparation is very important. Ask for the relevant trial bundles before the hearing so that you can be familiar with the documents. Ask your solicitor whether it may be appropriate for you to hear how the advocate opens the case to the Judge before calling any witnesses or for you to hear factual or other expert witnesses giving evidence before your own.

If you have not been asked to provide a curriculum vitae in advance of the hearing, bring one with you to the Court.
In cross-examination, the advocate may seek to challenge your independence or expertise, to suggest that his/her witnesses have superior expertise or to challenge the methods which you have adopted. There should not be trial by ambush, and literature or research upon which the other side relies should have been disclosed to you in advance. However such material may be put to you with the suggestion that this discredits your own opinion.

Even if you feel that a technical question displays a lack of understanding of your subject, answer it with courtesy. Do not become exasperated. Remain firm but polite.

If at any time before you give evidence you realise that you have overlooked something, that you have changed your opinion or that you will need to make a concession in favour of the opposing party, let your solicitor know immediately. This may be relevant to negotiations or on whether the case should proceed to trial.

In conference before the hearing, the advocate calling you to give evidence may take on the role of cross-examiner in order to test what answers you will give under real cross-examination by the opposing side. This rehearsal will be useful preparation.

You may be asked to be in Court when the experts on the other side give evidence to assist the advocate on the side calling you with his/her cross-examination.
Fees

It is important to agree charging rates, time for payment and any other relevant terms before you start work on a case. The invoices which you provide should set out details of time spent and hourly rates charged.

If you are told that your evidence is not required at short notice, you may be entitled to charge a cancellation fee in addition to a fee for preparing for the hearing if you have specified and agreed terms in advance. It will however normally be necessary for you to provide with your fee note evidence that you have not been able to replace your attendance at Court with other fee earning work.

Conclusion

Although it may be daunting certainly on the first occasion, giving evidence can be an exhilarating experience! If your evidence is honest, there is nothing to fear. You are willing to attend because you wish to assist the Court to come to the right decision. It is essential that you recognise the importance of preparation, remaining calm and concentrating on the questions asked.

This information has been prepared by Charles Russell as a service to our clients. It is a general guide, we recommend that you seek professional advice before taking action. No liability can be accepted by the Firm for any action taken or not taken as a result of this information. Charles Russell is regulated by the Law Society in the conduct of investment business.