Holding statements are read in court

In the last two years I have sat in four courtrooms while counsel read a client’s early public statements back to a witness. In three of the four cases the statement had been written in the first day of the matter, by someone who was not thinking about a courtroom at all.

This is a note for the people who write those statements.

• Write only what you know. “We are aware of” is safer than “we deeply regret”, because it is a statement about knowledge rather than about fault.
• Avoid adverbs. “Fully”, “immediately” and “thoroughly” are promises, and the other side will ask whether you kept them.
• Do not characterise the other party. Their conduct is for the court; your statement is about your own.
• Date everything, keep every draft and record who approved the final text. You will be asked.
• Agree the statement with your lawyers before it goes, even when it is two lines long. Especially when it is two lines long.

None of this means saying nothing. A short, factual statement, issued promptly, is rarely what goes wrong in court. What goes wrong is the warm, expansive statement written to make everyone feel better on the first day, which turns out, two years later, to have contained a small admission and a large promise.

The test I give clients is simple. Imagine your statement read aloud, slowly, by someone who would like you to lose. If every sentence survives that, it can be published.