Following the publication of Practice Direction 57AC (“PD57AC”), and a limited amount of subsequent case law, we have had discussions with both our customers and prospective customers about using Everlaw’s Storybuilder to help with conformance in the context of the new regime.
Trial Witness Statements Under the New Practice Direction 57AC Regime
PD57AC, in relation to Trial Witness Statements in the Business and Property Courts, finds its roots in the Implementation Report (the “Report”) of the Witness Evidence Working Group (the “Working Group”). This Report sets out, inter alia, that “…the two main problems are over-lawyered statements which do not reflect the witness’s evidence; and statements that are too long, argumentative or contain irrelevant material such as the extensive recitation of documents”.
On 22 October 2020, the Business and Property Courts Board received and endorsed the Working Group’s recommendation in this Report that its draft for a new PD57AC (and Appendix) be put before the Civil Procedure Rules Committee for consideration.
It was subsequently announced on 18 February 2021 that the Civil Procedure Rules Committee had approved PD57AC, with the aim of seeking to “promote and enforce best practice on the preparation of witness statements”, applying to witness statements for trial in the Business & Property Courts (the “BPC”) in respect of “claims issued after 6 April 2021, or to existing proceedings where the witness statements for trial are signed on or after 6 April 2021”.
Leveraging Everlaw’s Storybuilder for Trial Witness Statements
Everlaw’s Storybuilder is a collaborative narrative-building toolkit where users can gather key case documents, construct case timelines, and create drafts of documents to prepare for litigation and other matters.
From the discussions we reference earlier in this blog, we, therefore, determined that Storybuilder could potentially help to manage the process in the following ways:
- Timeline. It is possible to organise the key documents in your matter into a Timeline, which can include the documents that you need to use for trial witness statements. Individual witnesses can be given access to limited sets of documents as appropriate to their statement, and it is possible to provide an audit log of what they have looked at and any document actions, should that be required. Multiple labels and other comments can be added to the selected documents to help quickly and easily track issues related to any observations about the documents.
- Depositions. Whilst depositions are not part of the landscape in England and Wales, the workflow enabled through Everlaw’s Storybuilder helps users track questions posed and answers given by witnesses. There is also the ability to create free-form logical flows of questions (e.g., yes and no or more complex responses). It is possible to see the history of these documents and previous modifications should this come into question, and PDF or Word versions of the Deposition can also be exported from Everlaw.
- Drafts. These are a simplified version of Depositions with fewer features, but with the benefit that they may represent a straightforward place for either the legal team or, maybe more importantly, under the new rules, the witness to work on a draft witness statement. Again, it is possible to see the history of these documents and previous modifications should this come into question, and PDF or Word versions of the Draft can again be exported from Everlaw, so they can easily be put into house style (whilst retaining the history in Everlaw if required).
- Exhibits. It is also possible to easily create a list of the documents included in either the Deposition and/or the Draft, making it easy to list the individual documents related to the witness work product in question. It is also possible to easily export out a bundle of these documents should an offline copy be required.
Leveraging Everlaw’s integrated toolset appropriately can therefore help you and your team to maximise the efficacy and efficiency of your team, providing you and your clients with greater value from interactions with trial witnesses, and also help to reduce risk by providing enhanced accountability should you need to evidence your process if it is called into question.
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