Theoretical Perspective

At Ultima Ratio, witness statements can be presented as written declarations. If the arbitrator deems it necessary, they organise a teleconference to supplement facts of significant importance to the case.

Listening is Usually a Waste of Time

That’s the theory. In everyday reality, arbitrators treat written statements with a lot of scepticism, knowing that in 99% of cases, their content is prepared by the parties' representatives. Worse still, representatives often take shortcuts. Written statements are typically a “copy and paste” of assertions found in the claim or response. From an arbitrator’s viewpoint, it’s easy to guess what they genuinely think of such statements. They certainly do not advance factual determinations even a jot. So is there any point in squandering time on hearing such a witness if court rules stipulate that a judgement should be issued within three weeks of filing the claim?

What Intuition Suggests

In the meantime, for any professional lawyer, it's absolutely obvious that oral witness statements are more reliable than written ones. Thus, intuition suggests that to enhance the credibility of written statements, they should be prepared to closely resemble a casual witness account given in the courtroom. Yes! As peculiar as it may sound, in the eyes of the case-handling arbitrator, a witness’s spontaneous language, stylistic errors, ungrammatical expressions, shortcuts, or colloquial terms are not considered unprofessional or disrespectful. Quite the opposite - they are desirable. Indeed, if an arbitrator is to consider witness statements, they would like to receive material that looks like a witness's testimony.

What seems obvious at first glance is not so straightforward in practice.

Why? The issue is that it's often the client who expects the representative to prepare the draft statements. The representative fears writing in colloquial language using everyday expressions. Such language is far removed from what they anticipate a client will deem worth paying 200 or 500 zlotys per hour for.

Legal Jargon in Statements

Consequently, the representative - in the belief of having met their professional obligations - prepares statements that are clear were written by a lawyer. 

This is the second “mortal sin” of written witness statements. Astonishingly, most of them at Ultima Ratio look something like this: “I hereby state that insofar as it is not directly inferred from the mentioned documents, document X was prepared strictly based on information provided by me and fully corresponds with the truth.” Full stop. 

Such expressions indeed disqualify the statement even before the arbitrator considers what the witness actually intended to convey beneath the “legal” veneer.

New Facts, Observations or Remarks

So how can the credibility of written witness statements be increased? Simply do what a court would normally do if it had more time: prepare a list of questions, call the witness, record the answers and transcribe them onto paper. The more edited those statements are in the final phase, the less credible they will later be.

Another useful tip to pay attention to is that the statements should contain some new, interesting facts, observations, or remarks. Ones that could be somewhat significant for the case, and that don’t directly arise from procedural documents or other files. For example? If the claimant argues that the defendant is unlawfully occupying her commercial premises, then witness statements describing crowds of consumers shopping there could dramatically illustrate the factual situation and support the claim for eviction or compensation. 

Neglects Cannot be Rectified

And what happens if witness statements are prepared disregarding these guidelines and the arbitration court ignores them? Can they be “corrected” in any way?

Let’s give the floor here to Prof. Dr. hab. Łukasz Błaszczak from the University of Wrocław, a member of the Ultima Ratio Arbitration Court Council, who in a special conversation with us explains to what extent an arbitrator has discretion in assessing written witness statements and whether an appeal can be based on allegations of their faulty evaluation. (Watching the video will take about 4 minutes)