UPFRONT
NEWS ANALYSIS
A NEW ERA OF WITNESS PERFORMANCE Lawyers are not permitted to influence the evidence of their witnesses, yet witnesses are significantly disadvantaged without training. Consequently, independent professionals are taking advantage of this gap in the market. Digby Livingston reports THE CONDUCT and Client Care Rules for lawyers state “a lawyer must not, during the conduct of a proceedings, engage in any relationship with a witness that may have the effect or appear to have the effect of interfering with the fair disposition of the proceeding”. “A lawyer must not suggest to a witness or potential witness, whether expressly or impliedly, that false or misleading evidence ought to be given or that evidence should be suppressed.”
Case examples Lawyers may recall American judge and professor Irving Younger reciting Max Steuer’s cross examination of the prosecution witness who gave damning testimony of the Triangle Shirtwaist Factory fire, which killed 146 people in 1911. In the story, Steuer has the witness retell her testimony three times. The witness gives three identical speeches, word
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“Even in the most complex disputes, the result often comes down simply to who the judge believes at the end of the day. A poor performance in the witness box can undermine a witness’ confidence, damage the credibility of their evidence, and lose the case” Nikki Pender, LEGAL EMPOWERMENT for word, except for a single word in the third retelling. Steuer has the witness confess this was indeed a derivation from a memorised script provided by the prosecution lawyers. The owners responsible for the fire were subsequently acquitted. Fast forward to 2012 when Russian billionaire Roman Abramovich faced
a £3.5 billion claim by his former business partner Boris Berezovsky. It was no secret that Abramovich had been well prepared by a witness familiarisation course run by the United Kingdom firm Bond Solon. Berezovsky argued that this was a cynical manipulation of the trial process. The trial judge did not agree. He went