Filing and Winning Small Claims For Dummies by Judge Philip Straniere

Author:Judge Philip Straniere
Language: eng
Format: epub
Publisher: Wiley
Published: 2013-03-11T16:00:00+00:00

Chapter 13

Handling Live Witnesses Well

In This Chapter

Deciding whether to testify

Calling the defendant to the stand

Dealing with live witnesses

Submitting testimony on paper

Questioning witness credibility

Calling in the experts

Staying calm when a witness “misremembers”

Adjourning for a lost witness

Live witnesses are much harder to handle in court than documents. Documents don’t forget key facts, get tongue-tied in court, and have a hard time remembering their own names, much less what happened. And, documents don’t tell so many lies that, a la Pinocchio, their noses grow past the courtroom door.

But witnesses do have a positive side. Bringing in people who can substantiate your story cuts down on bringing in so many affidavits and documents that your side of the courtroom looks more like a scene from a hoarders’ show than a trial.

In this chapter, I review the advantages and disadvantages of using live witnesses. I walk you through the questioning process and give you guidelines on what to ask and what not to.

Choosing Not to Be Your Own Witness

If you’re filing your case in small claims court, you’re probably willing — if not downright eager — to get into the courtroom and tell your side of the story. In most cases, it goes without saying that you’re going to serve as one of your own witnesses. However, if you have agoraphobia, a fear of public places (not to be confused with angora-phobia, fear of wool sweaters), are worried that the judge will remember you from a traffic violation in 1977 where you concluded your case by calling the judge a fascist pig and exhorting all present to “free the Indianapolis 500,” or are afraid that you’ll blow your own case simply by opening your mouth, you may consider having someone else with knowledge of the facts testify in your place.

Having someone testify in your place really isn’t a good idea in most cases. I explain why in the next sections, but if you’re not deterred, I also tell you how to do it legally.

Sending someone to court in your stead

In most cases, whether you’re the plaintiff or the defendant in the case, you need to be the one standing in court if you want to win. You can’t give someone an affidavit or a power of attorney and have him stand in for you for the following reasons:

You’re the one who was there; you’re the one who knows the facts. It’s in your best interest to be the one presenting them.

Your opponent is legally entitled to cross-examine you in court. It’s impossible to cross-examine someone who doesn’t show up.

One exception to this rule is a situation in which you’re the owner of a car claiming property damages after a car crash. However, your spouse — not you — was the driver of the car, so you don’t have information as to how the accident happened and have no reason to testify. The driver of each vehicle and any passengers or witnesses would be the ones to testify.

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