In essence, the preparation of a witness for a disciplinary hearing, is the same as that for an arbitration hearing. Our firm chairs disciplinary hearings across the country daily, and it has often been our experience that witnesses have either, at worst, not been prepare at all or, at best have been poorly prepared.
Witness preparation is crucial to both employers and employees. More often than not, the verdict will hinge on what testimony is given by witnesses. Other forms of evidence also play a role, but witness evidence is invariably the most important evidence. It is important to remember that evidence is led by witnesses in an attempt to influence the hearing chairperson, or arbitrator, that their testimony is credible and persuasive. If the evidence led is not led in a confident, credible and logically sequential sequence, the chairperson or arbitrator may well unimpressed by the testimony of the witness, and even confused to the extent that it is not possible to add any value to the evidence.
The preparation of witnesses need not be time consuming, and with a little planning and time, witnesses can be primed to lead cogent, relevant and most importantly, credible evidence.
To begin with, witnesses are frequently reluctant to give evidence. Disciplinary and arbitration hearing environments are understandably intimidating for witnesses. This trepidation has the potential to make them anxious to the extent that their evidence is less compelling that it needs to be. This to is a reason why witness preparation is important. As much as possible must be done to minimise witness anxiety to ensure that the value of their testimony is maximized.
So where do you begin? Well, first and foremost, one must identify which questions are going to illicit answers which best support one’s case. It’s not just question of identifying the relevant questions, but also the sequence in which they are to be asked and answered. For example, there must be a reason why question one is asked first, and the final question is asked last. It is also worth remembering that it is only a witnesses observations which are important, not their opinions.
For example, if a witness states that the employee looked to be under the influence of alcohol, this will be ruled inadmissible, as it is a witnesses observations, not opinions, which have vale as evidence.
Once all witness questions have been selected, in the sequence to be asked and answered, the asking and answering of the questions should be practiced with the witness for as long as it takes to ensure that all questions are answered in a way that ensures the anticipated answer for each question. This is critically important, as one of the most important guidelines in witness preparation is that the questioner should never ask a question that they do not already know the answer to.
Without prior knowledge of the answers to each question to be asked, the questioner is incapable of leading the evidence of the witness in a manner which best supports their case.
Next, witnesses should be informed that when they testify, they will be asked three sets of questions. To begin with, they will be asked the questions which they have been prepared to answer by the questioner; this is referred to as the witnesses evidence in chief. There is only one simple rule to remember when it comes to evidence in chief; such questions may not be asked in a leading way. This means that the question cannot be asked in a way which suggests the answer.
Thereafter, the witness is exposed to cross-examination. Cross examination is an opportunity for the witness to have his or her evidence in chief challenged. It is only during cross examination that leading questions are permitted. It is advisable to prepare one’ witness for cross examination, so that they can anticipate cross examination questions, and be prepared to deal with them during the hearing.
Finally, witnesses are re-examined. This is a second, and final. Opportunity for the questioner to put questions to his or her own witness. Again, no leading question are permitted, and importantly, re-examination questions may only relate to questions put to the witness during cross-examination.
It is simply not possible to present a case competently without the thorough preparation of witnesses