The conference on “The Effective Examination of a Witness in Litigation” organized by Droit & Procédure and Paris City of Law and moderated by Valence Borgia (Medici Law firm) on 24 March 2022 brought together a number of practitioners (including speakers Frédérick Favre, Jean-Yves Garaud, Ioana Knoll-Tudor, Alexis Werl and Christian Wiest) to discuss the process of the examination of witnesses, which is still little-known, even though it is one of the factors contributing to the attractiveness of Paris as a legal centre.
This conference was divided into two parts.
The first part of the conference, which focused on the context, the stakes and the expectations of the different actors in the field, highlighted the differences between the examination of witnesses in common law and civil law. Ioana Knoll-Tudor explained that the judge and the parties play a different role in each of these legal systems.
President Christian Wiest was able to go back over the innovations brought by the protocols before the international chambers of the Paris Commercial Court and the Court of Appeal of Paris as well as the Guide to proceedings before the International Commercial Courts of Paris (use of English, systematic use of the procedural calendar for more visibility, implementation of provisions concerning the examination of witnesses, technicians and experts, hearing recorded by minutes or by a court reporter, hearing reserved for expert opinions, etc.) and insisted on the important freedom left to the parties. The President also stressed the value of witness examinations for judges in increasingly technical disputes.
Jean-Yves Garaud pointed out that time and money are considerations to have in mind when deciding whether or not witnesses should be presented/examined. He analysed the current situation from this angle and proposed solutions inspired by arbitration where this was possible for greater efficiency: no direct testimony of the witness by the party presenting the witness, closed questions, judge standing back during questions from opposing counsel to reserve those questions for the end and in charge of controlling the process to ensure that the answers remain limited in time, transcript by a court reporter if the parties can afford it or audio recording.
Alexis Werl agreed with Jean-Yves Garaud that time and money are considerations that might limit the recourse to the examination of witnesses and talked about the examination of witnesses in criminal matters and the central role of the judge in such proceedings. He noted that the examination of witnesses is not used as often as one might think, except before the Assize Court (Cour d’assises) where proceedings are oral. He also pointed out that civil justice is more and more inquisitorial and criminal justice is more and more contradictory.
Frédérick Favre presented his point of view as a legal director and explained what are the expectations of companies in this area. He noted that we have the necessary legal arsenal to move towards more orality in the proceedings, which is desirable in terms of the attractiveness of our jurisdictions vis-a-vis our counterparts. He also talked about the drawbacks (the examination of witnesses can be risky and is disruptive for the company) and the advantages - more numerous - of the exercise for the company (opportunity for the company to be more involved in the proceedings and to exchange directly with the judge, useful for experts and technical subjects).
The second part focused on practical advice on how to best and most effectively conduct the examination of witnesses.
Ioana Knoll-Tudor explained what is expected from a counsel in the preparation of witnesses, the main role of the lawyer being to help the parties to identify the weakest points of their case and to explain the importance of the testimony in the proceedings and for the strategy of the case. She identified the differences in the preparation of a technical expert and a factual witness and recalled the importance of the choice of the "right" expert and the "right" witness.
Jean-Yves Garaud recalled that the ethical texts and the Code of Civil Procedure do not prohibit the lawyer from meeting and speaking to the witness. He also mentioned the 2008 Resolution of the Bar Council regarding the preparation of witnesses according to which: "In the context of international arbitration proceedings, whether in France or abroad, it is part of the lawyer's mission to assess the relevance and seriousness of the testimony given in support of his client's claims, by adapting to the applicable procedural rules. In this spirit, the preparation of the witness by the lawyer before the hearing does not infringe the essential principles of the legal profession and is part of a commonly accepted practice in which the lawyer must be able to fully exercise his role as a defender.”
The role of the lawyer in preparing the witness is not to induce the witness to give false testimony; on the contrary, the witness must tell the truth.
Alexis Werl agrees with Jean-Yves Garaud that the prohibition of witness preparation in French law is not based on anything tangible but points out that such preparation can sometimes be misperceived - wrongly - and call into question the witness’ credibility.
Frédérick Favre said that, from the company's point of view, witness preparation is essential.
President Christian Wiest explained how the examination of witnesses is conducted before the commercial court, recalling that any person can be heard as a witness at the request of a party or the judge, that witnesses can be invited by the judge to answer questions of the opposing lawyer and that cross-examination by the opposing lawyer is a possibility.
Ioana Knoll-Tudor gave some practical advice for the examination and cross-examination of the witness at the hearing. She identified some points of attack, the idea being to prove that the witness called by the opposing party is unreliable or that the content of his or her statement is not accurate or that the expert is not independent or qualified in the subject matter on which he or she is reporting. Two tips in particular should be borne in mind: (i) define from the outset the three points to be drawn from the cross-examination – this makes it possible to have a line of conduct at the hearing while preserving a certain amount of flexibility because not everything can be anticipated – and (ii) use the exhibits.
Jean-Yves Garaud recalled that there are no such thing as American-style “objections” in France and that the role of the lawyer who presents the witness stops, in principle, at the hearing. It is up to the judge to play this role and to be able to direct the parties/witnesses towards the points her/she is interested in for greater efficiency.
The debate was closed after some questions from the audience.