Innovation in legal practice: Loquitur

Loquitur is an Australian witness familiarisation training organisation that provides witness familiarisation courses to assist in the provision of evidence by both factual and expert witnesses in all legal forums, including courts, tribunals, arbitrations, regulatory investigations and Royal Commissions in all Australian jurisdictions.

It seeks to ethically and practically help practitioners in the trial preparation process with courses that are designed to complement the existing trial preparation conducted by the legal team who will be relying on the witness.

Despite being well-established abroad, witness familiarisation is a recent addition to the Australian legal landscape, and Loquitur is at the forefront of the introduction of this innovation to the Australian legal market.

QLS Proctor spoke with Loquitur Director Tom Nevin:

1. What is witness familiarisation?

Witness familiarisation is part of the process of preparing a witness who is to provide testimony in court, or in other legal and quasi-legal settings, usually under cross examination.

Witness familiarisation is an educational process which helps a witness provide their evidence most effectively. It does this by providing theoretical and practical training in the provision of evidence. It seeks to help a witness overcome the nerves, stress and pressure of cross examination, and to deal with the nuances and hurdles frequently faced by those providing evidence.

The witness familiarisation process has a particular emphasis on practical methods of witness preparation through rigorous mock cross examination sessions. These are conducted by independent practising barristers based on a hypothetical sets of facts, completely independent of the actual facts and issues in any underlying proceedings. This gives witnesses the opportunity to practise and apply the fundamental skills learnt in a simulated, but realistic, environment.

2. How are witness familiarisation sessions conducted?

The content and structure of witness familiarisation sessions we conduct are (within ethical boundaries) tailored according to the needs and sophistication of the witness or the demands of the instructing firm.

Witness familiarisation is available for both expert and factual witnesses, and courses are designed for such witnesses to properly account for the differences in the type of evidence to be given. Typically, a course is for one day, structured as follows:

1. Morning session – Foundations
   • Introduction to the court/trial process
   • Role of a witness
   • The giving of evidence
   • Cross examination techniques
   • Strategies to deliver evidence effectively
2. Afternoon session – Practical
   • Mock cross examination session
   • Videoed for witness, reviewed and analysed

Courses are usually undertaken at the instructing firm’s offices. Sessions are generally conducted individually for witnesses in order to ensure ethical obligations prohibiting witness collusion are strictly observed. In some limited circumstances, group sessions can be arranged, such as for sessions to professional bodies, where no attendees are witnesses in the same proceeding.

3. How is it different from witness coaching, which of course is prohibited?

Unethical witness coaching is wholly separate and distinct from witness familiarisation training.

Witness coaching is influencing a witness’s evidence – telling a witness what to say, or how to answer a question put. In other words, it is “the orchestration of the evidence given” as the court said in R v Salisbury [2005] EWCA Crim 3107.

Conversely, witness familiarisation training is conducted wholly independently of the evidence to be given and thus falls safely within the ethical boundaries demanded of practitioners. This is achieved through several crucial mechanisms:

All courses are taught by independent local barristers, who are fully aware of, and subject to, the relevant regulatory and ethical obligations.

All course materials are hypothetical, prepared completely independently of the underlying legal proceedings.

All training sessions are conducted strictly without reference to the underlying proceedings. Training organisations and the instructors do not, and cannot, know details of these proceedings.

4. Has witness familiarisation been considered by the courts?

As a recent innovation in the Australian legal market, witness familiarisation has not had the opportunity for judicial consideration. However, the use of witness familiarisation has been judicially considered in the United Kingdom where the concept is well established and accepted by the courts as part of good trial preparation.

Some higher court authorities to this effect include, for example, R v Salisbury [2005] EWCA Crim 3107 at 60 and R v Momodou and Limani [2005] EWCA Crim 177 at 62.

Specifically, the UK Supreme Court, Court of Appeal in R v Salisbury [2005] EWCA Crim 3107, confirmed that witness familiarisation “[w]as an exercise any witness would be entitled to enjoy were it available. What was taking place was no more than preparation for the exercise of giving evidence.”

Though these cases relate to criminal proceedings, and are from the UK, I anticipate they would be persuasive in any Australian court’s determination of this issue. Indeed, the latter of these decisions has been quoted favourably by the Australian judiciary – see Justice John Griffiths, 5 March 2014: ‘Some Ethical Issues for Legal Practitioners’ (FCA) [2014] FedJSchol 4.

5. I believe this innovative service is a first for Australia, though it has been established in other countries?

Certainly, witness familiarisation is a recent innovation in the Australian legal market, although it is well established in other common law jurisdictions. Most analogously, it is common place in the UK and has been accepted by the courts of England and Wales since the early 2000s as ethical (and, indeed, potentially beneficial) for witnesses.

Additionally, similar services exist in the United States, although I understand that there is considerably more latitude given to US lawyers in conducting witness preparation exercises. I also understand the ethical obligations are substantively distinct, which limits the efficacy of the US model of witness preparation.

6. What need does this meet in the justice community?

Witness familiarisation training provides numerous benefits to the legal community. Firstly, for practitioners (and their clients), it provides reassurance that witnesses will present and deliver evidence in the most effective way possible.

It also allows a time and cost saving in the lead up to trial. Further, it allows a degree of training of witnesses which legal teams may be unable to provide to their clients – the rigorous training of witnesses by a third party avoids the risk of any ethical impropriety (either real or perceived), and leaves the legal team free to conduct the witness proofing and preparation on the evidence as required.

Additionally, and perhaps more importantly, are the overarching societal benefits. Courts will be more likely to obtain the best evidence possible, unhindered (or perhaps, less-hindered) by the stresses and nerves that witnesses invariably face in the courtroom.

The witness familiarisation process seeks to demystify the court process for the public and promotes the openness of justice, leading to improved public confidence and perception in the legal profession and the judiciary.

7. Where do your referrals come from?

A bit of a mixture actually, but typically from local law firms as part of their preparation for various types of hearings in both Australia and abroad. We also get requests from international firms with locally based clients and witnesses, and also direct from witnesses themselves and their companies and employers.

We also provide our services to expert witness organisations, either directly to the experts, to their professional bodies or firms/employers and also to expert agencies.

Additionally we are looking to broaden our offering to provide training for individuals who would (or could) be called on to give evidence as part of their regular duties, for example, emergency service officers, prison wardens etc.

8. What is the most innovative aspect of this service?

The witness familiarisation process we have introduced involves a series of innovations, all of which act to provide a unique and distinct offering to witnesses. Firstly, and perhaps most obviously, Loquitur has been instrumental in introducing this novel concept in the Australian legal market. While such offerings are commonplace in other jurisdictions (above), the adaptation of it for the Australian market has been crucial to the growing understanding and rapid uptake of this service in Australia.

Additionally, we have several innovations on an operational level. Firstly, by preparing a structured and comprehensive syllabus we are able to provide such training in a more systematic manner.

Secondly, we have a heavy reliance on practical training, through rigorous ‘stress-testing’ of the strategies and methods provided to provide evidence effectively.

Finally, and perhaps most significantly we rely on the use of video recording. Our practical sessions are recorded and then watched by participants and the instructor, and analysed to help improve the delivery and demeanour of witnesses. While obviously a crucial learning tool for attendees, it has the additional benefit of allowing practitioners (after the event) to watch and analyse a witness, and also serves as a documentary record of the session in the unlikely even that there are any questions asked of the integrity of the training.

Moreover, like the rest of the world, we have been forced to embrace remote and virtual technology as a means of provision of our services in the current environment. As courts and tribunals adapt to this new environment it also gives rise to a new element of the requirement for remote witness familiarisation training sessions, and also the need for additional training materials and content to assist in the preparation of witnesses in the provision of evidence remotely.

9. How does witness familiarisation help a legal team prepare for trial?

Witness familiarisation is not intended to replace rigorous proofing and preparation by the witness’ legal team on the actual evidence. The legal team must seek to ensure that the witness knows their evidence, and that the witness is able to respond intelligently to challenges to their evidence. Witness proofing and preparation requires a detailed understanding of the facts and issues of the relevant case on behalf of both the lawyer, and the witness.

Conversely, witness familiarisation allows a witness to gain a detailed understanding of the court and cross examination process, strategies and tactics used by advocates during cross examination and methods by which a witness can respond to these to more effectively deliver the witness’ evidence. Further, witnesses are given the opportunity to test these methods during rigorous simulated cross examination sessions on hypothetical facts.

In this manner, witness familiarisation seeks to complement and assist practitioners in their trial preparation, and it does not seek to replace the essential role of a witness’s legal team as part of the preparation and proofing of evidence.

10. Do you have some general tips that practitioners could pass on to their witnesses?

Many of the concepts we teach in our training courses are well known to practitioners, and practitioners regularly address some of these in their own preparation sessions.

Most practitioners will provide witnesses with various simple fundamental points for the effective delivery of evidence, for example:

• Listen to the question you are asked and only answer that question.
• Pause and take a breath before each answer.
• Keep answers short and concise.
• Direct your answers to the judge, not the advocate asking questions.
• If you get flustered, take a moment to pause and collect yourself.
• If you do not understand something, ask.

These points are simple and readily understood. However, in our experience it is the practical application of these, especially while under pressure, which witnesses often find the most difficult. It is important for practitioners to emphasise the practical application of these skills (and many more) by witnesses while giving evidence, while at all times adhering to the strict ethical rules, and it is this practical and ethical application of these concepts where witness familiarisation can help.

11. Is there anything you would like to add?

If there are any questions arising from the above discussion we would be most happy to discuss them with practitioners directly. We can be contacted as follows:
[email protected]
Head Office: (02) 8231 6661
loquitur.com.au

The original article is available here: https://www.qlsproctor.com.au/2021/03/innovation-in-legal-practice-loquitur/