At trial, documents are generally considered to be accurate and reliable.
Conversely, at trial, witnesses are generally considered to be subject to perception, memory and communication problems. Oral testimony in the absence of documentation, is considered dubious.
The solution is simple: get all witnesses to write out witness statements as soon as possible.
The statement could be an email. It could be printed, dated and signed. It could be under oath in affidavit form. Regardless of form, getting it as soon as possible is key.
What should you tell the witness to put in their statement? Nothing, it’s not counsel’s role to suggest content. But it is a good idea to remind witnesses to cover who, what, when, where, why and how.
A timely witness statement will boost the perceived accuracy and reliability of the witness. All of a sudden, they are not just talking, they have a document confirming what they are saying. And documents are generally considered accurate and reliable.
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