So, you're involved in a lawsuit that's been filed in a West Virginia magistrate or "small claims" court. Now it's time to go trial and have a magistrate decide who wins. What can you do to help make sure you're on the winning side? Photos and papers, like receipts and canceled checks, are very important, of course. Witnesses can be just as important, though, and could mean the difference between winning and losing.
Whether you're the one who filed the suit (the "plaintiff") or the person being sued (the "defendant"), you're allowed to bring witnesses with you help support your version of the case. Basically, witnesses are people who saw or heard something about the case. Or, they're "experts" who help explain something technical about a claim involved in the case.
Choose Wisely
Your witnesses need to have something meaningful to offer to the case. Otherwise, you run the risk of aggravating the magistrate for wasting her time and the court's time. So, be certain that your witnesses have personal knowledge about your case - they saw or heard something, like saw the car accident you're suing over. Or, if you need an expert, make sure he's qualified to talk about the case. For example, a mechanic is qualified to talk about faulty car repairs involved in a suit, but your friend who's a car salesmen probably isn't a good choice for such testimony.
Also, make sure you talk to your witnesses before you show up for trial. Make sure their testimony supports your version of the story and that they remember important facts in the same way as you do. If a potential witness doesn't help your case, don't use her.
For example, a witness may have seen the collision between your car and defendant's car, but he may not be able to say if one or both of you stopped for a stop sign or how fast either of you were driving just before the accident. You may not want this witness to testify.
Subpoena
A subpoena is a court order commanding someone to appear at court at a certain date and time and give testimony about something. Sometimes, the subpoena requires the person to bring documents with him to the courthouse when the documents are important for the case. Bills, receipts and leases are good examples of documents that may be subpoenaed.
If you need a witness to come to court but the witness will not come, you can ask the clerk of the magistrate court to subpoena the witness, requiring her to come to trial and testify. To subpoena a witness, you'll have to fill out a subpoena form and arrange for it to be delivered to (or "served on") the witness, which usually is done by the sheriff who serves the area in which the witness lives.
You have to pay a fee for subpoenaing a witness, as well as for having it served. Also, you'll have to pay a "witness fee" to anyone you subpoena to testify. This fee is usually a per-day dollar amount, plus a sum to help cover the witness's costs of traveling to and from court. The court clerk can tell you the amount of all of these fees, as well as help you with the process of having the subpoena served.
If you didn't subpoena a witness and she doesn't show up for trial, you may have to go ahead with the trial without the witness. A magistrate may or may not grant you a continuance, that is, postpone the trial so that you can get the witness to show up. You'll have to explain why the witness is so important to your case, though.
If you find out before trial that a witness can't make the trial date, such as because of an emergency or illness, you may ask the magistrate for a continuance. The other party has to agree to the postponement, however.
If you get a subpoena, you should contact the person who sent it to you or his attorney for additional information about it. The subpoena itself should include the necessary contact information. Don't ignore a subpoena! Anyone who doesn't obey a subpoena can be held in "contempt of court." This means you've violated a court order; you could be fined by the court or even put in jail for a few days.
Expert Witnesses
An expert witness has education, training, skills or experience that makes her more knowledgeable about a particular subject than the average person. Expert witnesses are used to explain technical or complicated matters so that ordinary people or "laypersons" can understand them better. For example, you may want a mechanic to testify about why the car repairs you're suing over were faulty because the magistrate or the jury may not have a complete understanding of how car engines work.
Examples of possible expert witnesses are:
- Automobile mechanics and body workers
- Construction professionals, like carpenters, roofers and general contractors
- Doctors, such as your family physician or chiropractor
- Computer or information technology (IT) professionals
In most cases you'll have to pay an expert for her testimony. And, you can't use a subpoena to force an expert witness to testify.