Tonight I was involved in a twitter discussion about the publication of some tips for social workers who are worried about giving evidence, and the sense that parents are not given similar support.
Appearing as a witness in court: tips for social workershttps://t.co/IJXGKP7LIW
— Community Care (@CommunityCare) October 12, 2017
You can read the twitter exchange here :
What about the parents which is what it should all be about https://t.co/XRZGw7qRZk
— JerryLonsdale ???????? (@JerryLonsdale1) October 12, 2017
I have to say that by and large I think parents are given precisely the sort of general guidance that is offered in the Community Care post (although of course nobody is expecting them to be a “professional” witness). At any rate, my clients don’t go in the witness box without me explaining what is going to happen, how they can manage the process and how they can best make sure they get their points across (unless its an emergency hearing perhaps) – and I know from speaking to colleagues that my “pep talk” about this is pretty standard stuff. But that probably isn’t universally true, and certainly tonight is not the first time a parent has told me they weren’t given any support in the hearing or with giving evidence. And, of course, if you are involved in a private law case you might not have a lawyer at all.
So I thought it might help some parents to have my general “giving evidence” pep talk written down, in case their own lawyer doesn’t provide it. This post is mainly aimed at parents in public law (care) cases, but will hopefully be of use to others too.
Before I give you my tips for giving evidence there are a couple of things to say about the process that might help with that feeling of imbalance and that everything is weighted against a parent in a care case.
Firstly, social workers. In the exchange tonight one familiar theme was that social workers are used to giving evidence, that they have the support of their managers in court and in essence its far easier for them than for parents. I don’t accept that, although I know that is how it often feels for parents. But when you are in court at a final hearing bricking it you need to know this : that social worker on the other side of the court has very probably never given evidence before (turnover is high, many social workers are inexperienced and there is a pretty high likelihood that this is the first case they’ve seen through to a final hearing). Without being rude about parents I often wonder whether parents are more likely to have experience of giving evidence than social workers, because many of them have been involved in previous family or criminal proceedings. You may know more about court process than a newly qualified social worker. Once they get experienced social workers move quickly to team manager and then they tend not to give evidence. Then they are the ones sitting in the back of court, burning a hole in the side of the social worker whilst they are in the witness box, sweating in response to the cold stare of the parents, the parents’ lawyer, the judge, their own lawyer, their manager…It is not uncommon for everyone in the court room to be more experienced than the social worker in the box. And even an experienced social worker may not give evidence often – I recently represented a local authority and discovered that the social worker had 15 years experience but for one reason or another had never given evidence – her cases had always settled. She was pretty flipping nervous after a 15 year build up I can tell you!
I don’t say this to make you feel sympathy for social workers. It’s their job. But know this : You may be feeling sick to your stomach, but you may not be the only one. I’ve known social workers be physically sick before they give evidence. Sometimes because they haven’t given evidence before, and sometimes because they have – and it hasn’t been good. Your perception that they are confident may be mistaken. Your perception that they are supported by their manager may be wrong. In a dysfunctional local authority they are far more likely to feel scrutinised, that they are being monitored to make sure they toe the line. So never think that you are the only one feeling stressed. Of course their job is not as important as your children, but social workers are understandably fearful of criticism – and cross examination is the process by which any failures in the way they have carried out their responsibilities is exposed. They know they can be named, shamed and sanctioned by their employer if it is all a disaster. And actually, although it may be hard to accept, most social workers do genuinely worry about whether their recommendation is the right one.
It is also worth saying that some judges do refuse to allow professional witnesses to have their manager in court “for support”, precisely because they recognise it feels unbalanced when a parent has to come into court with nobody but a lawyer to support them – although in reality an objection by a parent made to a judge that isn’t bothered by such things is unlikely to carry much weight. The best thing to do is to try not to worry about the manager.
So. What about your evidence? Coaching a witness (rehearsing questions and answers) is not permitted. But there is nothing wrong with explaining to a witness how things work, and how best to get your message across. So here goes, in two parts : The process. Your response. Everything I say here could apply to any witness in any case.
- The witness (that’s you) goes to the witness box (it might be a box you stand or sit in or it might be a table)
- You swear an oath (religious promise – choose the appropriate holy book, bible etc) or you affirm (same thing but no God). You are promising God or the court to tell the truth. Make sure you do.
- Don’t take your own notes into the witness box unless the judge has approved it. Some judges don’t like it.
- You will be asked by your lawyer (or the judge if you don’t have one) to confirm that any statements you have prepared are true. You’ll be taken to each page in the court bundle to check and identify the documents. Make sure you have re-read them before you give evidence. If you spot any errors, let your lawyer know in advance and say you want to correct something at this point.
- Your lawyer will probably ask you a few questions to update the court of anything important that has happened since your last statement, any change in your position or to expand on anything missed out of your statements (if the judge agrees). This is called “Examination in chief”.
- The other lawyers will now be able to ask you questions in turn. This is called cross examination.
- At the end your lawyer will have a brief chance to ask you a few more questions dealing with anything unexpected that has cropped up. This is called re-examination. Often your lawyer will not ask anything, so don’t worry if this doesn’t happen.
- The judge may ask questions throughout, at the end (and they may then ask the lawyers if they have extra questions as a result) or not at all. It depends on the judge.
- Answer all the questions. If any are inappropriate your lawyer will object (or if you don’t have a lawyer the judge should stop it).
- If you don’t understand the question, say you don’t understand the question.
- If you forgot the question, say you forgot the question.
- If you don’t know the answer say you don’t know the answer (and if you aren’t sure just say you aren’t sure rather than giving a firm answer that turns out to be wrong).
- Do not treat every question as a trick question. Answer the question you are asked straightforwardly, honestly and simply.
- Don’t answer the question you wish you had been asked or try to cram everything you want to say into every answer. Answer the one you have been asked. It’s your lawyers job to make sure that you cover the points you need to.
- Don’t disagree just because they are the lawyer for the “other side”. If they are right about something, say so. Disagree if they are wrong.
- Don’t get cross. Keep calm. Talk slowly. Take a breath. The judge has to take a note so you need to go slow enough for them to write / type. Not everyone is good at punctuation but try and imagine where there might be a comma or a full stop and take a breath at those moments. This will help you slow down enough for the judge to take a note.
- Don’t ask questions in reply. The lawyer will just say “I’m not here to answer questions Mr / Ms So and so” and that’s just annoying for everyone. Their job is to ask questions. Your job at the moment is to answer them if you can.
- Try not to be rude to the lawyer asking you questions. You might not manage it, but they are simply doing their job and you won’t win any points for being rude to them – even if they are asking you upsetting or annoying questions.
- Stick to what you did, said or saw – sometimes people are so busy trying to show they didn’t do something (like punching their ex for example) by making clever points about the weaknesses in the evidence against them (she didn’t report it, nobody saw it) that they forget to actually say what happened – “that’s not true” or “that didn’t happen” or “this is what happened” is far more helpful to a judge than “if that happened she would have reported it / shown someone a bruise”.
- Watch the judge. Directing your answer to the judge will be less stressful than looking at the social worker or your ex or the lawyer asking you horrid questions. It will also help you make sure they are keeping up, will help the judge assess your evidence, and will help you assess their reaction. You will almost certainly be talking faster than you think you are, because of stress.
- If you are interrupted, ask to be allowed to finish answering.
- If you need a break because you are upset or you need a wee or you feel sick – say so (you don’t need to give all the gory details but it’s ok to ask for a break). If you are exhausted and can’t concentrate on the questions please let the judge know.
- You should have tissues and a drink but if not – say so.
- If you need help with finding a page that you are being asked to look at or if you need help finding a page you want to refer to – say so.
- If you have problems reading, hearing or understanding certain words – it is ok to say so. Everyone in court is familiar with all sorts of difficulties.
- If you need time to answer a question because you are struggling to find a word – say so.
- If you are intimidated by the behaviour of someone in court (for example an ex is staring at you) – say so.
- Try not to swear – but if you are explaining what you or someone else said on a particular occasion that’s fine (e.g. “He told me to fuck off”).
- Tell it like it is. Don’t sugar coat. Be frank and honest.
One last thing : Sometimes there will be a break in your evidence. You will be warned by your lawyer and / or the judge that you must not speak to anyone about our evidence in this break. It’s better that you don’t spend time over any lunch break with someone else so that noone can accuse you of discussing your evidence with them.
Hope that is helpful…