Being a witness and providing evidence in an arbitration proceeding can be an intimidating experience. Naturally, witnesses would want to familiarise themselves with the process and accurately recall the relevant facts or events.
Witnesses often rely on legal counsel to assist them in understanding the legal proceedings and shaping their testimony. However, in certain jurisdictions, there is a concern that excessive witness preparation may “taint” or distort the witness’s testimony. If witnesses are overly coached or influenced by their legal advocates, their testimony may no longer reflect their genuine recollection, but rather what they have been instructed to say. This can significantly undermine the credibility and value of their testimony in the eyes of the tribunal.
There is a broad consensus among legal practitioners, both from common law and civil law jurisdictions, that it is acceptable for counsel to prepare witnesses for their testimony in international arbitration. Despite this consensus, significant variations still exist in how different jurisdictions and arbitration laws define what constitutes permissible “witness preparation.” These variations include differences in ethical rules and regulations.
Definition of Witness Preparation
Witness preparation is an important aspect of legal proceedings, particularly when it comes to preparing witnesses to testify in court or in an arbitration proceeding. It involves different levels of contact with the witness and can be categorised into witness familiarisation and witness coaching.
Witness familiarisation aims to make the witness feel more at ease with the practice and procedure of giving evidence. This may involve providing an explanation of the layout of the hearing room and the likely order of events. Additionally, a mock cross-examination based on hypothetical facts may be conducted to familiarise the witness with the process.
On the other hand, witness coaching goes beyond familiarisation. It involves a detailed review of the specific facts of the dispute and focuses on rehearsing the witness’s answers to anticipated questions on cross-examination. The objective here is to shape the witness’s responses to align with a desired outcome.
The English View
In English courts, the law is clear when it comes to witness preparation. The case of R v Momodou [2005] EWCA Crim 177 established that while witness familiarisation is allowed, witness coaching is considered unlawful. The Court of Appeal said that: “Training or coaching for witnesses in criminal proceedings […] is not permitted. This is the logical consequence of a well-known principle that discussions between witnesses shall not take place, and that the statements and proofs of one witness should not be disclosed to any other witness.” The court emphasised that a witness should give his or her own evidence without being influenced by others. This rule applies not only to criminal cases but also to civil litigation in England and Wales.
Both barristers and solicitors in England have their own codes of conduct that prohibit witness rehearsal, practice, or coaching. They are required to act in accordance with their professional obligations and must not deceive or mislead the court. These rules apply regardless of whether the legal professionals are involved in international arbitration or domestic litigation.
The American View
The United States is often considered to be the most liberal common law country in this regard. In the United States, ethical rules permit and even arguably require lawyers to extensively prepare witnesses, including through activities like mock cross-examinations. In fact, the failure to adequately prepare a witness may be seen as professional misconduct.
The Restatement (Third) of the Law Governing Lawyers provides guidance on how most jurisdictions in the United States approach witness preparation. It states that lawyers are allowed to interview witnesses for the purpose of preparing them to testify. The guidance explains that lawyers can invite witnesses to provide truthful testimony favourable to their client. Preparation consistent with this rule may involve reviewing the relevant factual context, examining documents or physical evidence, and discussing potential lines of hostile cross-examination.
In the United States, witness preparation may also include rehearsing a witness’s testimony, and lawyers are even allowed to suggest words that the witness may use to ensure clarity in their meaning.
The American Bar Association’s Model Rules of Professional Conduct also provide relevant guidance for lawyers in the United States. However, these rules only explicitly prohibit lawyers from offering evidence that they know to be false, remaining silent on the specifics of witness preparation.
Apart from the prohibition on offering false evidence, United States lawyers have significant discretion in preparing witnesses, as long as they do not engage in fraudulent or unbecoming conduct that goes against the broad ethical rules. The ethics committees in the United States emphasise that the substance and truthfulness of the testimony are crucial, regardless of whether the lawyer suggests specific wording. If the suggested language, although not false, is calculated to mislead, it would be considered impermissible.
The Singaporean View
In Singapore, the perspective aligns closely with English law, albeit with a lesser degree of conservatism.
The leading case on witness preparation in Singapore is De La Sala v Compañia De Navegación Palomar SA [2017] SGHC 14; [2018] SGCA 16, where the Singapore High Court and the Court of Appeal relied on the Momodou case, further clarifying the issue of witness preparation. They emphasised that lawyers can ask questions of their witnesses to simulate cross-examination. However, they must refrain from coaching the witness on what the “right” answer should be. It is important that the witness’s answers remain their own.
The De La Sala case involved a dispute between different factions of the De La Sala family over several companies. During the proceedings, it was revealed that one family member, Elena, had been involved in training sessions with another family member, Tony. Elena admitted that these sessions involved a transcript and script, and if Tony made a mistake, he would be led through the relevant questions again to ensure he answered correctly.
The Singapore Court of Appeal determined that the key issue in cases involving improper witness preparation is whether the preparation compromises the fundamental principle that the witness’s evidence must be their own independent testimony. The court identified three rules that follow from this principle, and if these rules are compromised, the court may attribute less or no weight to the relevant evidence.
Firstly, the lawyers preparing the witness must not allow other individuals to supplant or supplement the witness’s own evidence. The witness’s testimony should be their own and not influenced or replaced by others.
Secondly, even if the first rule is observed, the preparation should not be excessively lengthy or repetitive. Over time, repeated questioning or subtle cues may influence the witness to adopt answers that they do not genuinely believe to be true but consider more favourable to their case.
Thirdly, witness preparation should not be done in groups. When witnesses hear or observe the answers or reactions of others, it may cause them to doubt, second-guess, or modify their own answers, even if those answers were initially truthful.
In the De La Sala case, the Court of Appeal found that the content of the script cast serious doubt on whether Tony’s evidence was his own. Therefore, the judge was correct in giving little weight to Tony’s evidence.
The professional obligations of Singapore lawyers in witness preparation are governed by various laws, regulations, practice directions, guidelines, and court judgments. While these authorities do not comprehensively regulate the correct way to conduct witness preparation, certain restrictions are found in the Legal Profession (Professional Conduct) Rules 2015. These rules prohibit lawyers from allowing clients to give false evidence and from engaging in any impropriety by encouraging or assisting clients in giving false evidence.
In Singapore, mock cross-examinations with preparatory questions are allowed. However, scripted answers are not permitted. Lawyers are encouraged to pose questions that help the witness identify any contradictions or inconsistencies in their witness statements. This approach aims to assist witnesses in realising any discrepancies in their testimony and ensuring that their answers remain genuine and true to their own recollection.
Overall, the Singaporean approach aligns with the principles of witness preparation in English law, emphasising the importance of witness independence, avoiding contamination of testimonies, and allowing for preparatory questioning without scripted answers.
Practical Guidance
There is a lack of clear guidance across the jurisdictions, resulting in differing approaches to witness preparation in international arbitration. The rules of institutions such as the LCIA, SIAC, ICDR, SCC, and ICC are silent on the topic or only mention witness interviewing subject to applicable law.
The IBA Rules on the Taking of Evidence, often adopted in international arbitration, mention some discussion with witnesses about their prospective testimony. The IBA Guidelines on Party Representation in International Arbitration go further, allowing counsel to meet and interact with witnesses to discuss and prepare their prospective testimony.
Due to this lack of clear guidance and the absence of a universal code of ethics for international arbitration, lawyers from different jurisdictions may follow different rules regarding witness preparation. For example, while some Commonwealth jurisdictions like Australia and New Zealand have rules similar to the English position, prohibiting witness coaching, in the United States, witness coaching through mock cross-examinations and rehearsals is considered lawful and common practice.
To create a level playing field in international arbitration, consider the following tips for witness preparation:
- Seek direction from the arbitral tribunal regarding contact with witnesses, clarifying permissible boundaries early on.
- Familiarise yourself with jurisdiction-specific approaches to witness preparation across involved jurisdictions.
- Tailor your approach to the case and tribunal, considering the jurisdictional backgrounds of both parties’ counsel and the tribunal.
- Comply with ethical obligations by aligning witness preparation activities with relevant rules and regulations.
- Address potential inequalities in witness preparation due to differing qualifications of counsel from different jurisdictions, seeking the tribunal’s guidance.
- Focus on the witness’s genuine recollection and provide explanations without influencing their testimony.
- Avoid excessive preparation and undue influence, allowing the witness’s genuine recollection to prevail.
- Ensure the presence of legal counsel during witness preparation sessions to maintain appropriate conduct and preserve privileges.
By following these practical guidelines, lawyers can effectively prepare witnesses in international arbitration proceedings, respecting jurisdiction-specific approaches, ethical obligations, and the tribunal’s expectations, while promoting the witness’s genuine recollection and preserving the integrity of the process.
If you need any further information on witness preparation or related topics, please do not hesitate to contact us for support or advice.