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Article: May 2019: Trial Practice Update

Business Litigation Reports

Live witness testimony—whether in person or via video—often is the default vehicle for trial testimony in the United States. Fact finders expect to see and hear directly from witnesses to assess credibility. Parties prefer to present their direct evidence through live witnesses who can offer the trial story with emotion, credibility, and conviction that is lost if presented in written form. This practice stands in contrast to fora outside the United States, including the High Court of Justice in England and Wales and international arbitrations, where parties routinely use written witness statements to present direct testimony. Increasingly, however, proceedings in the United States are adopting the use of written witness statements to present direct testimony of witnesses under a party’s control in non-jury trial settings—including in United States Federal District Courts and administrative agencies.

Use of Witness Statements in United States Federal District Courts

The use of written witness statements in lieu of oral testimony for direct examination is permissible in non-jury trials before federal district courts so long as the witness adopts the statement in open court and is made available for cross-examination. For instance, the Ninth Circuit expressly approved the use of witness statements to present direct testimony as a standard procedure of the Bankruptcy Court in the Central District of California. In re Adair, 965 F.2d 777, 779 (9th Cir. 1992). This mode of presenting direct testimony is generally permissible only (1) in bench trials, (2) where the witness is under the control of a party, and (3) if the procedure permits oral cross-examination and redirect examination in open court, preserving an opportunity for the judge to evaluate witness demeanor and credibility. These requirements are consistent with local rules governing the use of written witness statements. For example, the Central District of California’s current Local Rule 43‑1 permits the use of witness statements under these circumstances. See C.D. Cal. Civ. L.R. 43‑1 (“Non-Jury Trial—Narrative Statements. In any matter tried in that court, the judge may order that the direct testimony of a witness be presented by written narrative statement subject to the witness’ cross-examination at the trial. Such written, direct testimony shall be adopted by the witness orally in open court, unless such requirement is waived.”). Other judges and jurisdictions have similar rules. For instance: Judges Illston, Orrick, and White in the Northern District of California have guidelines allowing for the use of witness statements presenting direct testimony in bench trials, and the District of Minnesota’s Rules of Procedure for Expedited Trials are similarly permissive. Over half of the forty-one judges in the District Court for the Southern District of New York (21 of 41) in fact require the use of direct witness statements in bench trials unless otherwise ordered. Further, some judges in the Southern District of New York will admit a witness’ written testimony into evidence without subjecting the witness to cross-examination if the opposing party does not intend to cross-examine that witness at trial. For example, Judge Gardephe’s Individual Rules of Practice state: “Three business days after submission of [sworn written testimony], counsel for each party shall submit a list of all affiants whom he or she intends to cross-examine at the trial. Only those witnesses who will be cross-examined need appear at trial.”

Use of Witness Statements in United States Administrative Proceedings

Witness statements also are commonly used for direct testimony before federal administrative agencies acting in an adjudicatory capacity. Of the five active Administrative Law Judges (“ALJs”) at the International Trade Commission, two—Judges Bullock and Shaw—require all direct testimony, with the exception of adverse witnesses, to be presented in witness statements as the default in their Ground Rules. Judge Lord requires the direct testimony of all experts to be made via witness statements. Others—Judges Cheney and McNamara—require live direct testimony unless otherwise ordered. Other federal agencies allow the use of written witness statements upon motion. By way of example, the procedural rules of the Federal Deposit Insurance Corporation permit the use of witness statements in place of oral direct testimony upon motion of any party or on the ALJ’s own motion. 12 C.F.R. § 308.106(a). Some agencies even require written witness statements in all proceedings of a certain type. For example, direct testimony is required to be submitted in the form of written witness statements in hearings involving the imposition of civil monetary penalties for violations of certain statutory provisions by the Food and Drug Administration. 21 C.F.R. § 17.37(b).

Use of Witness Statements in the High Court of Justice in England and Wales

High Court judges in England and Wales are given broad discretion to control the presentation of evidence, including by ordering the use of written witness statements. See Civil Procedure Rules 32.2, 32.4, 32.5. As a result of procedural reform in the 1980’s, the High Court has increasingly used written witness statements instead of oral testimony to present direct evidence, and this practice has essentially become the default. Lord Justice Jackson, Review of Civil Litigation Costs: Preliminary Report 401 (2010), https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/jackson-vol2-low.pdf. The procedure is similar to that used in United States Federal District Courts. The written statement containing all of the witness’s direct testimony is served prior to trial. Id. at 402. During trial, the witness is cross-examined orally by the other party’s counsel. Id. The witness may not testify at trial regarding new issues not contained in her/his witness statement without permission of the court. See Civil Procedure Rule 32.5(3)-(4).

Use of Witness Statements in Arbitral Proceedings

Witness statements are used extensively in international arbitration proceedings, and some U.S.-based arbitrators have promoted the expanded use of written direct testimony in domestic arbitrations as well. See, e.g., Raymond G. Bender, Presenting Witness Testimony in U.S. Domestic Arbitration: Should Written Witness Statements Become the Norm?, 69 Disp. Resol. J., no. 4, 2014, at 39, 39-40. The American Arbitration Association and JAMS both permit testimony in the form of written witness statements. See, e.g., Commercial Arbitration Rules and Mediation Procedures, Am. Arb. Ass’n, Rule 35(a) (Oct. 1, 2013), https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf; Comprehensive Arbitration Rules & Procedures, JAMS, Rule 22(e) (July 1, 2014), https://www.jamsadr.com/files/Uploads/Documents/JAMS-Rules/JAMS_comprehensive_arbitration_rules-2014.pdf. In the international arbitration context, both the United Nations Commission on International Trade Law (“UNCITRAL”) and the International Chamber of Commerce rules likewise permit the use of written witness statements. See UNCITRAL Arbitration Rules, U.N. Comm’n on Int’l Trade Law, art. 27(2) (Feb. 2014), http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf; Arbitration Rules, International Chamber of Commerce, art. 25(6) (Mar. 1, 2017), https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration.

Pros and Cons of Written Witness Statements

So why use witness statements instead of live direct testimony? A principle reason is efficiency. Parties often have strict time limits at trial, and using a witness statement allows a party offering direct testimony to enter that testimony in a fraction of the time it would otherwise take to present the testimony live. This is particularly true for expert witnesses, who often have lengthy direct examinations, particularly in intellectual property cases and cases involving complex subject matter: trial time for such experts can be shortened by several hours through the use of written statements. Further, less trial time is spent dealing with live objections over testimony and exhibits because objections will be handled pre-trial. And because written testimony is prepared and served in advance of trial, the trial can be streamlined so that the court and counsel are able to focus on the most relevant issues. The time saved on direct also allows the parties to spend more time on cross-examinations, which is critical to any successful trial. Thus, without lengthy direct testimony, proceedings can be shorter, saving the parties and the court valuable time and potentially lowering costs.

Another reason is predictability. Live testimony inherently has some amount of uncertainty, no matter how well-prepared a witness might be. Witnesses may forget things, get stage fright, or go off script and open the door to topics that may be unhelpful or even harmful. This is especially true with inexperienced witnesses, who often are the key fact witnesses in a case. Witness statements remove most of that uncertainty and risk. Written witness statements also limit the scope of direct—and, absent an agreement to go beyond the scope of direct, cross-examination as well—while also minimizing the risk that relevant evidence is missed. This benefit also is seen in the arbitration context, where the general rule is that cross-examinations are limited to the scope of the direct witness statements. Albert Bates Jr. & R. Zachary Torres-Fowler, Expectations and Practices Concerning Examinations in International Arbitration, Legal Intelligencer (Jan. 15, 2018). Moreover, parties will be able to see in advance of trial whether the opposing party is attempting to introduce new evidence or theories at trial, which is often difficult to do in real time. Thus, they can address these new theories and/or evidence through motion practice in advance of and without disrupting the trial.

Written statements also streamline the entry of physical evidence into the record. In particular, written statements avoid the need to spend trial time presenting live testimony on laying foundation for and establishing authenticity and admissibility of physical evidence (unless otherwise stipulated to in advance by the parties). Doing so minimizes the risk that key documents in the case are missed and do not make it into the trial record.

Finally, if the judge or arbitrator allows a witness’ written testimony into evidence without subjecting the witness to cross-examination because the opposing party waives this right, then a weak witness may escape taking the stand altogether and yet her/his testimony will get into evidence. This is another potential advantage of using a witness statement.

There are, of course, potential drawbacks. A witness who offers direct testimony through a witness statement may not have an opportunity to get comfortable and warmed up on the stand before cross-examination begins. The witness also does not get an opportunity to fully introduce herself to the fact finder and gain credibility early on. Instead, the witness is cross-examined first. And a proceeding where each witness is almost immediately cross-examined gives opposing parties an advantage—they get to attack their adversary’s case and tell their story first, while making their adversary’s witnesses appear defensive. This can be especially problematic for plaintiffs, who typically present their case-in-chief first. Instead of presenting live evidence at the outset, a plaintiff must wait as the defendant makes its points through cross-examination, potentially shifting momentum early on in the defendant’s favor.

Further, because witness statements are served well in advance of trial, an opposing party has more time to prepare effective cross-examinations. Accordingly, when using written statements instead of live direct testimony, redirect examinations are absolutely critical. Before trial, parties should be prepared to redirect their witnesses on important topics where a witness might be vulnerable or that are critical to winning. Redirect examination plays an elevated role in diffusing and undermining any points won or damage done during cross-examination when using written witness examinations.

Another potential drawback may be presented where the court provides an opposing party the opportunity to present rebuttal testimony after having had a chance to review the written direct testimony. In that scenario, the opposing party will be able to take its time preparing for and directly rebutting the points made on direct—as opposed to live testimony at trial, where the time between direct and rebuttal witnesses is more limited and may not present the opposing party with adequate time to fully prepare its rebuttal witnesses. On the other hand, if the court orders simultaneous exchange of all direct witness statements, then there is an increased risk that a party’s rebuttal statements will fail to fully address all of the points that are made in the opposing party’s witness statements.