So, you're involved in a lawsuit that's been filed in a Montana small claims court, and it's time to prepare for the trial when a judge or justice of the peace will decide who wins. What can you do to help make sure you're on the winning side? Of course, you need any papers and evidence to help prove your case, like receipts, bills and photographs. But, don't forget about people. Witnesses can mean the difference between winning and losing because they can have a big impact on what the judge thinks about the case.
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.
Your witnesses need to have something meaningful to offer to the case. Otherwise, you run the risk of aggravating the judge 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 heard your former landlord say that he wasn't going to refund your security deposit. 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 that they'll support your version of the story and 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, if you're a landlord being sued for a security deposit, a witness may have seen the rental property on the day a former tenant moved out and saw first-hand the damaged walls. However, she may not be able to say if the tenant caused the damage or if it was there when he moved in. You may not want this witness to testify.
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 refuses to do so, you can ask the clerk of the justice 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, which you can get from the clerk, and arrange for it to be delivered to (or "served on") the witness. This usually is done by a process server or sheriff of the county where the witness lives.
You have to pay a fee for subpoenaing a witness. The court clerk can tell you the amount of the fee, as well as help you with the process of having the subpoena issued. You also have to pay a "witness fee" to anyone you subpoena to testify. This fee is a flat dollar amount of at least $10 per day, plus a separate charge to help pay the witness's costs of traveling to and from the courthouse. The court clerk can tell you more about this fee.
If you don'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 judge 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 judge 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's order; you could be fined by the court or even put in jail for a few days.
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, if your lawsuit is over faulty car repairs, you may want a mechanic to explain what was wrong with the repairs because the judge may not have a full 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.
Testifying without Being There
Live, in-court witness testimony is always best. That way, the judge and other party can ask the witness questions, and everyone can gauge how truthful and reliable he is. However, the judge may or may not let you use a written statement given by a witness. The judge will consider whether the statement is trustworthy, reliable and relevant to your case. If so, the judge may allow it. It will help if the statement is in the form of an affidavit. This simply means that the statement was made under oath or was "notarized."
The judge also may or may not let a witness testify by telephone, such as when a witness lives out-of-state. Reliability, trustworthiness and the importance of the testimony will guide the judge's decision on the matter.
Before trial, you should ask the court clerk about how the judges in your particular small claims court usually handle requests to let witnesses testify without being present at trial.
In most cases, the plaintiff will give her evidence first, including testimony from her witnesses. The defendant will go second. During the trial, the judge usually asks the witnesses questions, and each party can question the other's witnesses.
It's important that you don't interrupt the witnesses, even if you think the witness is wrong or even lying. Make notes about the discrepancies. Later, you can either ask the witness about the discrepancy or use your own witnesses to set the matter straight.
You may interrupt a witness, however, when you have a valid objection to what he's saying. An "objection" means that the witness is testifying about something that he shouldn't be. Good examples are when a witness:
- Doesn't have direct, personal knowledge about what he's testifying about. For example, a passenger in car who didn't actually see the collision is asked to testify about how fast the defendant's car was moving
- Relies on hearsay, which is when the witness testifies about something he heard someone say and that person isn't a witness at trial. For example, when a witness is asked to testify about what a passerby said just after a car accident
Questions for Your Attorney
- I was sued in small claims and at trial, one of my witnesses changed his story and the plaintiff won. Is there anything I can do?
- I was subpoenaed to testify as a witness in a small claims suit involving a landlord-tenant dispute. I'll have to take an unpaid day off work to be at trial. Do I really have to go? Can I make the person who sent the subpoena pay my lost wages for the day?
- Should I bring "character" witnesses to trial to testify about my good nature and how I take care of my personal responsibilities?