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Taking Statements – Part 2: Lay Witnesses

September 25, 2023

Lay witness statements will often require lawyers to work with witnesses who have little to no experience with the legal system. This means the witness will typically rely on the lawyer to explain what is required or expected of them. Given the importance of witness statements, all parties should have a clear understanding of not just what is required of them, but what can (and cannot) be included in any statements. This requires lawyers to not just understand what is required of them, but each lay witness.

This article explores the key rules which must be followed when preparing lay witness statements, and the information that can (and cannot) be included.

Lay Witness Statement Rules and Requirements

As mentioned in the previous article, there are rules that operate in respect of the preparation of lay witness statements. At a high level, each of these rules is to ensure that a lawyer upholds their ethical duties to the court, and to maintain the integrity of the witness’ evidence.

Leading Questions

Leading questions are those that have the tendency to suggest the answer when asking the question. If adducing evidence in chief orally, these questions cannot be asked.

Similarly, when conferencing with a witness to prepare a witness statement, lawyers should avoid asking leading questions. Instead, the questions should be open, and the witness not directed to any specific evidence in advance.

While a lawyer may seek to direct a witness’ attention to certain events or materials, this should be done in such a manner that  ensures the material being recorded in the actual testimony of the witness. Importantly, lawyers should be aware that witnesses may feel encouraged to remember certain events based on what they anticipate a lawyer may be looking for, and avoiding leading questions can mitigate the risk of this.

Lawyers should keep in mind that lay witness statements are not an opportunity to obtain favorable testimony (that may have been difficult to elicit orally by way of evidence in chief), but instead serve to improve efficiency of litigious matters.

Assisting Witnesses

Lawyers can assist witnesses in working through events or recalling matters by providing contemporaneous documents or timelines of certain events. In doing so, a witness may be asked to consider documents that are inconsistent with anything they have said, or which challenges their ability to accurately recall certain things.

However, lawyers should ensure that a witness is not told what another witness has said. A lawyer may frame the questions they ask based on information known to them, but they should not specifically refer to what another witness has said. This again goes to ensuring leading questions are avoided.

As an example, a lawyer shouldn’t say “When I spoke to John, he mentioned that you directed him to perform the works in a certain order.” Instead, a lawyer may ask “did you give any directions on how the works were to be performed?” This ensures that the witness is not directed towards accepting a version of events that is not an accurate representation of their testimony.

Similarly, lawyers should ensure that when conferencing with lay witnesses, questions are asked of each specific event or circumstance. It would be inappropriate for a lawyer to relay a specific series of events or how something occurred, and ask the witness to confirm this is correct. In doing so, a lawyer would be directing the lay witness towards accepting a version of events that does not accurately represent their testimony.

The above examples each highlight that when conferencing with a witness, lawyers should always keep in mind that they are seeking to understand the actual testimony and recollection of events from a given witness. The intention of a lay witness statement is never to adduce evidence favourable to a given position, when it is not accurate or reflective of the witnesses true testimony.

Witness Statement Inclusions

Adverse Evidence

Often, a witness will be aware of information that supports both sides of a given case. This inevitably gives rise to  whether a witness statement should include both favourable and unfavourable (adverse) evidence.

Importantly, a witness statement must be complete and truthful. It cannot, for instance, contain a half truth, or be constructed as misleading. Hence, a lay witness statement couldn’t include only half of a conversation or discussion, where the other half would provide context or understanding which may be adverse to a party’s case.

However, if the matter is discrete from other matters raised within the witness statement, there is no need for that separate matter to be included, whether it be favourable or adverse. This aligns with there being no general obligation to notify the other party that there may be oral testimony that supports their case.

Notwithstanding this, it is important for all involved in the preparation of witness statements to remember that the evidence given must be the whole truth on a given topic. Where this includes adverse information, it must be included. If the statement was adduced by oral evidence in chief, the witness would answer the question asked of them truthfully and fully. The use of witness statements is not intended to provide an opportunity to avoid such evidence being adduced, and lawyer should always take caution in ensuring that this is strictly complied with.


Hearsay relates to when evidence is sought to be adduced about what someone else represented to be true. The basis of the hearsay rule provides that statements made out of court are not made under oath (or affirmation), and therefore cannot be given the same weight as evidence given under oath (or affirmation). The evidence would be hearsay, and therefore inadmissible, if the object of the evidence was to establish the truth of what is contained in the statement.

Practically speaking, this means a witness cannot adduce evidence of facts or matters that another person told them outside of court, except where certain exemptions apply.

Where a lay witness statement is prepared for the purposes of evidence in chief, it is therefore critical to ensure the content does not contain any materials that may infringe the hearsay rule. Lawyers should ensure they fully understand the operation of the hearsay rule in advance of preparing a witness statement, and that the content of such does not include any evidence that may be deemed inadmissible.

Lamont Project and Construction Lawyers

Lamont Project and Construction Lawyers have extensive experience preparing and conferencing with witnesses, and can assist parties in any stage of a dispute.

By working proactively, Lamont Project and Construction Lawyers can ensure witness conferencing occurs in advance of key litigious milestones, and that internal timeframes are established with lead to the greatest chances for success.

The content of this article is for information purposes only and it does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.

Contact: Peter Lamont or Ryan Bryett

Email: [email protected] or [email protected]

Phone: (07) 3248 8500

Address: Suite 1, Level 1, 349 Coronation Drive, Milton Qld 4064

Postal Address: PO Box 1133, Milton Qld 4064