When witnesses come unstuck – and clients don’t notice

Difficulties arise in tribunal if a representative believes that a witness has been vitally damaged under cross-examination, but the client does not. The representative may believe that the damage is sufficient to make settlement or withdrawal sensible, or even necessary, while the client confidently wants to press on.

The situation is particularly difficult if the witness who has come unstuck is the client themselves.

In such circumstances, it is vital that the representative give clear advice about what has happened and what the affect has been. If the client has inadvertently conceded the majority of his case, he needs to be told. More than that, he needs to be told precisely what he has conceded and why it is important. If his evidence has been fundamentally unconvincing he should be told. He also needs to be told what his options are. If there is a risk that costs might be awarded against him he must be advised of that as well. This is one of the many situations that requires both tact and firmness on the part of the representative.

Once that advice has been given, however, the decision is the client’s and the representative must accept his decision. ((Except in the rare cases that the representative is professionally embarrassed and must cease acting. And even then the client may continue alone.)) It is his case and the decision to settle or withdraw is his.

It should be noted, however, that this advice is only applicable to situations where the case is coming badly apart and some sort of serious corrective action is necessary. In most cases witnesses will answer some questions well and some less well. There is no need to carry out an exhaustive post-mortem of every witness. Indeed, it is likely to be detrimental, to the client and representatives nerves if nothing else, to do so.

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