Witnesses

• Author: John Hollander
• Pages: 69-84

witnesses

69

chapter four

Witnesses

   it any more clearly? Trials are not about you,

they are not about the lawyers, they are not even about

clients. ey are about facts, and facts come from wit-

nesses. You may think the case is about your client, but

clients are only witnesses with some “skin in the game.”

Organizations consist of people, people who can testify.

Documents, even electronic ones, are created by

people. e admission of the document into evidence

is really the admission of what that person created, or

caused to be created. Scratch the surface of the exhibit,

and you will nd a potential witness. It may be that you

do not call the witness to testify, but for every document

there is or could have been a witness.

Just as a carpenter treats the tools of the trade with

great respect, so must a trial lawyer treat witnesses with

civility, honour, integrity, and respect. is is equally true

for those witnesses who lie, cheat, and steal. After all, you

can only practise your profession as a litigator when there

are disputes to litigate. As bad as their conduct might

have been, witnesses who misbehave are good for your

trade.

The Civil CourTroom

70

ose who regulate the conduct of lawyers have

regulated the treatment of witnesses. e Rules of Profes-

sional Conduct now tell lawyers what they may and may

not do. Boiled down, these rules tell us that we cannot

treat witnesses with disrespect. Also, we may neither sup-

press evidence nor present tainted evidence. e Rules of

Professional Conduct even provide for witness interviews

outside of court.

How to Arrange the Witness Interview

   make it a point to meet with pro-

fessional witnesses at their oces, not at yours. is de-

livers several important signals, one of which is that your

time is not more valuable than theirs. You could even

declare, “I am not more important than you are,” and

when it comes time for trial, you should do everything

possible to accommodate their schedule and their sensi-

tivity. Go the extra mile to make their professional lives

easier. However, it may not be possible to do this for all

witnesses. You may simply not have the time, especially as

the trial date approaches. Many witnesses do not have the

facilities to meet with you at a professional oce of their

own. You may propose to meet most lay witnesses at your

oce. at said, here are some guidelines that will assist

you in the accommodation of witnesses.

. Arrange the meeting at a time that is most conven-

ient for them. ey may have to take time o work.

1 Law Society of Upper Canada, Rules of Professional Con-

duct (November 2007), Rule 4.03.