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Using People as Evidence: Witnesses

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A witness is a person called by either side in a lawsuit to give testimony before the judge.  It could be you, other people who have direct and relevant information about the case, people who keep records, or experts who are qualified to give an opinion in an area of the case.  Usually, the witness must be present in court for the hearing or trial.

Normally, at the beginning of the court session, all of the parties and their witnesses are sworn in by the courtroom clerk.  If your witness testifies, generally it is in the format of the judge asking him or her questions.

How do I prepare my witnesses for court?

He or she should be ready to state:

For an eyewitness: 

a.  His or her legal name and address 
b. The date of the event that was witnessed 
c. What he or she saw, heard, smelled, felt or tasted – and how he or she did so.

For an expert witness (by declarationOpens new window usually): 

a.  His or her legal name and address 
b.  His or her work and education credentials, which show expertise in the field being commented on. 
c.  What he or she did related to the situation to be able to render an opinion. 
d.  When he or she did this. 
e.  His or her conclusions. 
f.  If necessary in the situation, an estimate of the cost to redo the work properly. 
g.  Any other facts that might be important in this dispute. 

Remind your witnesses that they must tell the truth.  It is ok to say, “I don’t know” or “I don’t remember,” if that is the truth.

TIP:  You may want to write down ahead of time why you want to offer this witness. Then, when the judge asks, you can answer even if you’re nervous.


What if a key witness says he or she won’t come to court? 

You can ask the court to order a witness to appear at your hearing. The court order is called a subpoena.Opens new window

You can get subpoenas from the court that order someone: 

  • To appear 
  • To appear and produce documents or things

NOTE 1:  Some witnesses may want to appear but need to be served with a subpoena in order to get the time off of their work to go to court.

NOTE 2:  You probably would not want to make a witness go to court unless he or she has already agreed to testify. Dragging someone into court who doesn’t want to be there could set him or her against you.

  • To learn how to subpoena a witness to appear, click here
  • To learn how to subpoena a witness to appear and take documents or things to court, click here.


What if a key witness is willing to testify but cannot come to court?

In small claims court, witnesses usually appear in court to give their testimony before the judge. However, this is not always reasonable. For example, a witness may have an illness, be disabled, or live out-of-state. The judge will accept a written statement as evidence. Also, the judge may take their testimony over the telephone on the day of the hearing, if you ask in advance. (An out-of-state witness must use a written affidavit, Opens new window  sworn according to the laws of California, for their testimony.) 

  • To learn how to have a witness give evidence by telephone, click here.
  • To learn how to have a witness give evidence by written declaration or affidavit, click here.
     


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