A will say statement is an overview of the anticipated evidence of a witness. This would be important for witnesses other than the parties who are subject to examinations for discovery and experts who have prepared a report. Will say statements are for the other witnesses for whom there is inadequate information to understand the nature of their anticipated evidence. In short, a will say statement is to avoid trial by surprise.
The Rules of Civil Procedure do not mandate the exchange of will statements, however, in practice there are a number of ways to access the information that would be in a will say statement. First, affidavits of documents may include statements contained in various Schedule “A” documents. Or they may be identified if obtained in Schedule “B”, even if not disclosed. At examinations for discovery it is perfectly acceptable to ask about the gist of Schedule “B” statements or about what witnesses may have information about the facts alleged in the pleadings and what the nature of that information is. Furthermore, will says may be ordered at a pre-trial conference or by the Trial Judge.
Court orders aside, most counsel will simply agree to exchange will say statements by a certain date. Alternatively, most counsel will prepare will say statements as part of their trial preparation and as a matter of good advocacy in the sense of ensuring trial fairness and avoiding a situation where a witness’s testimony could be perceived as a form of ambush at trial and potentially disallowed to testify.
If it is of assistance, you can purchase a template will say statement here:
Template Will Say Statement
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