Getting a Witness to Trial
My father’s firm once had a litigious client. She was in her late thirties or early forties when I was first acquainted with her. I was a few years into my practice. She was beautiful. She was also fiercely intelligent, aggressive and articulate. She was corporate-savvy and ran several businesses she owned. Since it was litigation, it meant my immediate boss dealt with her. And since my immediate boss dealt with her, I was on all her cases. And she had many cases with us. The reason for that was she liked to ‘go legal’, which was her favourite phrase. ‘Datin, company X said they need more time and are asking for 3 months to settle.’ ‘They always for more time but never pay. Go legal.’ ‘Datin, the forensic report showed [staff] embezzled a substantial sum of company Y’s money.’ ‘I knew it. Go legal. Civil and criminal. ‘Datin, about the shareholder dispute in Company Z, I think….’ ‘Go legal. Sue all of them!’ As a result of her litigious nature, within a couple of years of working with her, we had numerous cases of hers making their way through the courts. Many of her cases were originating summons cases. That meant the matter was resolved by way of affidavits. She only had to appear before the Commissioner for Oaths to sign her affidavit. After that, she left the matter in our care. There was no trial. Or even if there was, often there was no need for her to attend it. There were, however, a few cases that involved her as a witness. The first of them was due in a few months. It was a corporate dispute. The case took a few years before it came up for trial. Before that, there were several hard-fought applications that we successfully overcame to reach trial. That meant our client had to attend court as a witness for her cases. It was at this point that I discovered a different side to our client’s personality. In preparation for the trial, we prepared a draft witness statement for her and sent it to her for feedback. The practice of witness statements was not yet mandatory but we thought it was good practice and helpful to the client to have one prepared. I sent her a draft witness statement well in advance as I knew she was usually busy. Despite the weight of her work, she always responded quickly. This time, however, unusually, she was slow to respond. Even though my boss usually dealt with her directly, over the years and cases, I dealt and directly engaged with her to the point there was a casual informality between us. Despite the gap in age and status, I felt I could speak openly and directly with her. That was something I appreciated about her. For all her wealth and status, she was down-to-earth and carried no airs about her. ‘Uncle Izzat, what’s going on with Datin’s witness statement? It’s been two weeks since I sent it to her. She hasn’t gotten back to us. The trial is coming up in two weeks too.’ ‘Ha? That’s unusual.’ ‘Yeah. It’s unusual.’ ‘I don’t know. I haven’t seen her lately. Why don’t you follow up with her?’ So I did. ‘Hi, Datin. Fahri here. How are you?’ ‘Fine. Fine. Yourself?’ ‘I’m good, Datin. I am calling to follow up about that draft witness statement I sent you about two wee…’ ‘Yeah. Yeah. I received it. I saw it. Eh, Fahri.’ Suddenly she dropped her voice. ‘Do I really have to be a witness ah?’ ‘Uhm. Yah. Of course, Datin. You are the one that conducted the transaction. You were the one that issued the letters against the Defendants. You are also the best person to have as a witness because you know the entire situation inside out.’ ‘Oh is it?’ ‘Of course. You are our star witness, Datin.’ There was a silence on her end. I felt I said the wrong thing. ‘What about Halim? He was also there.’ ‘Yah, well, Datin. Halim was not the decision maker. He just ikut only. He was not at the crucial meetings. You were. He is not the brains behind the business. You are.’ Silence again. ‘You know, Fahri. I have never been a witness in a trial before. If I can be honest, I am scared to be a witness.’ That was a revelation to me: That she had never been a witness in a legal proceeding despite being litigious. The other revelation was: That this beautiful, fiercely intelligent, aggressive and articulate lady was scared of being a witness. ‘What if they asked me questions I cannot anticipate or don’t know the answer to? What if they ask me questions that make me look bad or embarrass me? What if they ….’ ‘Datin. Datin. Calm down. Calm down. Look. Let me…’ ‘I don’t want to be a witness, Fahri. I don’t want to do this. I don’t want to be in a box where they can ask me all kinds of things and I cannot respond. I cannot respond, right? They can say anything and I cannot respond. ‘Whoa. Wait. Wait. What do you mean cannot res…’ ‘I think we withdraw the claim lah, Fahri. I don’t think I can do this. Just thinking about it gets me stressed. I don’t want to be a witness. I don’t… ‘HANG ON DATIN. Sorry. Just hang on a second. Please. Sorry. Sorry to raise my voice there. But just please allow me an opportunity to respond. Please? Just calm down a moment. Let me speak. Three minutes. Just hear me out. Please?’ ‘Okay. What is it?’ ‘Look. I hear you and empathise. I get it. You are afraid to be a witness. You are afraid you are going to get whacked with all kinds of questions by the other side’s lawyer. I hear you. But Datin, let me put this into perspective for you. If we withdraw the claim now,
