Now that it's time for the trial of a case in the New Jersey small claims court, what do you need to win? Witnesses can be a big help by supporting your version of the facts or your claim for damages caused by the defendant. In short, they can have a big impact on whether the judge decides if you win or lose.

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 judge for wasting her time and the court's time. Your witnesses should 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 salesman probably isn't a good choice for such testimony.

Also, make sure you talk to your witnesses before the trial. You want to make sure that they can support your version of the story. You also want to make sure that they remember important facts in the same way as you do. If a potential witness doesn't help your case, you should consider not using him.

For example, a witness may have seen the collision between yours and the defendant's cars, but may not be able to say how fast either of you were driving or if you stopped completely at a stop sign before the accident. You may not want this witness to testify.

Subpoena

A subpoena is a court order requiring someone to appear at trial and give testimony about something in the case. 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 but he says that he will not go to court for you, you can ask the court clerk to subpoena the witness, requiring him to show up at the trial and testify. To subpoena a witness, you'll have to fill out a subpoena form and arrange for it to be delivered (or "served") to the witness. This is typically done by deputy sheriff who serves the area in which 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.

If a witness doesn't appear for trial and you didn't subpoena him, you may have to go through the trial without him. The judge may grant you a continuance, that is, postpone the trial for a few days so that you can get the witness to show up. You'll have to convince the judge that the witness is important, 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're subpoenaed, contact the person who sent it to you or her lawyer as soon as possible to find out why you're needed. The subpoena should explain how to contact them. Don't ignore a subpoena! If you don't obey a subpoena, you can be held in "contempt of court." This means you could be fined by the court or even put in jail for a few days.

Expert Witnesses

An expert witness is someone with 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.

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

In New Jersey, your witnesses must be in court. The judge will allow or hear only actual, live testimony about what a witness heard or saw. A written statement, even if it's made under oath, is inadmissible, meaning the judge won't look at it. Nor will the judge allow a witness to testify by telephone.

This "live-witness" rule is probably most troublesome when an expert witness is involved. In many states, an expert will look at a case and prepare a written report, which can be used at trial without having the expert there. The expert, of course, usually charges a fee for the report. In New Jersey, the expert's fee could be significantly higher since he has to show up at trial to testify.

Giving Testimony

In most cases, you'll present your case first, including testimony from your 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 about something or not testifying truthfully. Take notes if this happens. 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 she's saying. That is, when she's testifying about something that she shouldn't be. For example, you can object when a witness:

  • Doesn't have direct, personal knowledge about what he's testifying about. For example, a passenger in car who was sleeping at the time of the collision is asked to testify about the color of the traffic light at the intersection where the collision happened
  • Relies on hearsay, which is when the witness testifies about something she heard someone say and that person isn't a witness at trial. For example, when a witness is asked to testify about what an unknown 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 got subpoenaed to testify as a witness in a small claims suit involving a car accident. 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?

Tagged as: Consumer Law, Contracts, Real Estate