You're part of a lawsuit that's been filed in the Virginia small claims court and it's almost time for it to go trial and have a judge decide who wins. What can you do to help make sure you're on the winning side? Witnesses can have a big influence on the judge, and so they can mean the difference between winning and losing 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 your case so that the judge can better understand your claim to the money or property you're demanding.
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, make sure 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, be certain that 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, talk to your witnesses well before you show up at the courthouse for trial. You want to make sure that they agree with 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 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. If you need a witness to come to court but she refuses to do so, you can ask the district court clerk to subpoena the witness, requiring her to come to trial and testify. To subpoena a witness, you need to fill out a "Request for Witness Subpoena" with the clerk at least 10 days before the trial. You'll need the witness's name and address, and you'll have to pay a fee to have the subpoena delivered to (or "served on") the witness by the sheriff. The clerk can give you the form you need and tell you the fee amount.
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 her. A judge may or may not grant you a continuance, which is a postponement of 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 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 knowledge 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
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 and 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 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 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 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?
Related Resources on Lawyers.comsm
- Start the process with our Virginia Small Claims Worksheet
- Next in the Small Claims series: After Small Claims Court in Virginia
- Success in Small Claims Court
- Small Claims Court Terms
- Defending a Small Claims Case
- Visit our Small Claims Court Forum for more help.