It's almost time for the trial of a lawsuit that's been filed in a New Mexico small claims or "magistrate" court. A magistrate will finally decide if you win or lose. What can you do to help make sure you're on the winning side? Witnesses can 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.
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. You need to make sure that your witnesses support 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 the defendant's car, 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.
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 won't come, you can ask the clerk of the magistrate or metropolitan 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. The clerk can explain how to do this, but generally it can be served by anyone who's over 18 years old and not part of the lawsuit. Usually, it's usually done by the 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. Also, you have to pay a "witness fee" to anyone you subpoena to testify. This fee is a per-day dollar amount, plus the witness's costs of traveling to and from court. The clerk can tell you specific fee amounts.
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'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 you're suing over faulty car repairs, you may want a mechanic to explain why the repairs were faulty because the magistrate or jury may not understand 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 testimony by a witness is always best. That way, the magistrate and the other party may ask the witness questions and everyone can gauge for themselves how reliable and truthful the witness is. However, the magistrate may or may not let you use a written statement given by a witness. The magistrate will consider whether the statement is trustworthy, reliable and relevant to your case. If so, the magistrate 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 magistrate 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 magistrate's decision on the matter.
Before trial, you should ask the clerk about how the magistrates in your small claims court usually handle requests to let witnesses testify without being present at trial.
In most cases, the plaintiff will give her evidence fist, including testimony from her witnesses. The defendant will go second. During the trial, the magistrate 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 slip and fall personal injury claim. 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?