If you want to say in a witness statement that someone said something, just say that they said it.

Those who draft witness statements often get hung up on this – possibly because they have been taught that it is bad style to keep using the same word in a piece of writing. There is something in that rule, but you have to use your judgment (and your ear) about when to follow it. In particular, it simply doesn’t apply to ‘said.’ The reader won’t notice ‘said’ any more than ‘the’, ‘or’, ‘and’, ‘has’ etc – it doesn’t hook the attention, but just imperceptibly feeds the reader some information about who was speaking. On the other hand, if you keep repeating ‘confirmed’ or ‘indicated’ in your statement, it will sound very wooden.

So avoid the following expressions, and similar:

‘Expressed that,’ which is clumsy, and grammatically dubious – you normally express something: admiration, disapproval, a wish, an objection etc.

‘Indicated,’ which provides less clarity than ‘said’ in an extra 3 syllables. ‘Mary Jane indicated that she did not like rice pudding’ does not tell us whether whether she said politely, ‘I won’t thanks, I’ve never liked rice pudding,’ or pulled a face, or took a spoonful and then spat it out – or lay on the floor kicking and screaming.

‘Verbally indicated,’ which uses the 4 syllables of ‘indicated’ to introduce unnecessary uncertainty about how it was indicated; and then takes another 3 syllables (‘verbally’) to clear up that uncertainty.

‘Confirmed,’ which is fine if what you mean is that the speaker made definite something that had previously appeared uncertain; but otherwise ‘said’ is more accurate.

‘Shared,’ because it won’t help your case to make the tribunal feel queasy.

This is advice often give to aspiring novelists. The idea is that your story will be more vivid if you let the characters of the people you are writing about emerge from their actions than if you just describe what they are like. (There’s a much fuller explanation on Wikipedia.) ‘Actions speak louder than words’ expresses much the same idea.

When you write your witness statement, you are telling a story. Unlike a novel, your statement must be true. But ‘show, don’t tell’ is still good advice. Don’t say “Miss Claverham behaved disgracefully by doing so-and-so… ” or “It showed how Miss Claverham always wanted to put me down when she said… ” Just say what she did, and what she said. The tribunal will have to decide for itself what it thinks her behaviour demonstrated, and whether it was disgraceful – or, more to the point, unlawful. Your account will have more impact if you resist the temptation to load it down with judgment and comment of your own.

As with most rules, there will be exceptions. If you are claiming compensation for injury to feelings in a discrimination case, you will have to say how the discrimination has made you feel. Sometimes it is just too time-consuming to show: if, for example, a judgment about someone’s character is part of the background to you story, but not a central part of what you have to prove in order to succeed in your claim, you may want to say “Everyone found Miss Claverham difficult and demanding, and none of the secretaries wanted to work for her” instead of taking several pages to describe sufficient instances of her behaviour to allow the tribunal to see what she was like.

In an ideal world, witness statements would be ready days, if not weeks, before they had to be exchanged. There would even be lots of time for tweaking, polishing and general fiddling with them, to make sure they were absolutely perfect.

In the real world, witness statements often have to be prepared quickly.

Even when you are in a rush it is important to make sure that the statement is complete and accurate. In particular, advisors must always make sure that their client has read and agreed the statement before it is exchanged.

If you are really rushed there are ways of cutting corners, without causing problems.

Exchange unsigned statements

It is often easier to get confirmation that a statement is okay than it is to get a signed copy from the client. There is nothing wrong with exchanging unsigned statements. It is simply a myth that statements must be signed before they are exchanged.

Leave page numbers blank

Sometimes you will need to exchange statements before the agreed bundle has been finalised. If this happens it is normally sensible to leave space to insert page numbers later. This allows you to exchange on time, but still provide the tribunal with a copy with cross-references to the bundle of documents.

Employment tribunals tend to order that witness statements are to be ‘exchanged’ on a certain date. What is implicit in this is that there will be simultaneous exchange, so that neither party gets a preview of the other side’s statements before it writes its own. For this reason it is normal to agree with the other side to exchange by fax or email at a particular time of day. If you feel anxious about this, you may want to telephone the respondent or its adviser when that time comes to check that they are ready to exchange. The only way to be completely sure of simultaneous exchange is to agree to exchange at a meeting, but this is rarely if ever done – it is too inconvenient, and the advantage in seeing the other side’s witness statements before you write your own is minor anyway.

Written submissions may be treated the same way, although some tribunals will order written submissions to be dealt with in sequence, in the order that oral submissions would be made. Simultaneous exchange of submissions is even less important than simultaneous exchange of statements, because by the time submissions are drafted, all the evidence has been given and the issues should be clear. Each side will already have a pretty good idea what the other is going to say.

It is usually important – and always desirable – for the tribunal to have a clear idea what it was that the claimant was employed to do. This can be surprisingly difficult: people tend to assume that their job title is sufficient information. If the job title is ‘French teacher’ or ‘train driver,’ they are probably right. If it is ‘External Account Manager’ or ‘Director of Operations,’ it will need some explanation. Some witnesses, asked what their job involved, will make noises like ‘I was responsible for all operational aspects of the company’s third and fourth tier ventures,’ and find it hard to grasp that this is not intelligible. It is important, when drafting a witness statement, to persist until you know what the claimant was employed to do and why it mattered, and then write that down in the witness statement in a way that will make the tribunal understand it too. Ultimately it may be necessary to ask questions like: ‘Tell me about your typical working day. You arrive at the office, make a cup of tea, sit down at your desk, check your email – what do you do next?’ or even (in desperation) ‘What would happen if your job didn’t get done? Why would it matter?’