Can I use a witness in my small claims case?
Updated: Apr 27
Parties in small claims courts have the right to give evidence in their case via testimony by a witness. But just because you can do something, doesn’t always mean you should. This article will help you decide whether or not to use a witness in your case.
Should you bring a witness to court?
Sometimes you might find yourself in a situation where it’s a classic example of “he said, she said.” Having some type of outside evidence to consider can help clear up the case enough to tip the scale to one side.
Let’s say you lent someone money and they didn’t pay you back. The two of you wrote the terms of the deal on a napkin while at a bar with your friend, then put your initials at the bottom. In a future small claims case to recover the money, should you bring the napkin? Your friend? Both?
In this case, the best evidence for the court to consider would actually be the napkin, because it has the terms of the deal written down clearly. Bringing in the friend might help, but a court might consider him or her unnecessary. Written evidence is preferred by the court because it isn’t subject to human error like a witness. Witnesses can be biased or forgetful. If you don’t have a written agreement, look for other pieces of written evidence like text messages or emails that you can screenshot.
Compare this situation to a car accident. You swear the accident wasn’t your fault and the other driver swears the same. In this case, it would be helpful to have a witness tell the court what they saw (i.e. who hit who). Request the police report from the accident to get eyewitness names.
Okay, so you’ve decided you need a witness. Should you bring them to court or submit a witness statement?
There are two ways you can get a witness’s testimony in the courtroom: 1) bring the witness with you to court, or 2) take a witness statement.
What is a witness statement?
Rather than bring your witness with you to court, you can ask them to write a statement to the judge. This statement should cover everything the witness would have said in the courtroom if he or she was present. It should begin with who the witness is and what qualifies them to offer testimony (see the example below) before they jump right into what he or she witnessed.
Because the statement is not being made in a courtroom after taking an oath to tell the truth, the witness must sign the statement “under penalty of perjury.” This means he or she will be guilty of perjury (lying to the court) should they lie in the statement. Signing a statement under penalty of perjury holds your written word to the same standard as your spoken word in front of a judge.
Example Witness Statement
Who the witness is - My name is Rebecca and I was standing on the street corner of First and Main on Tuesday, April 5.
What they witnessed - I saw the defendant rear-end the plaintiff while the plaintiff was stopped at a red light.
Signed under oath - I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. *Date and signature*
What do I need to know about bringing a witness to court?
First things first, just because you bring a witness to court doesn’t mean the court will call them (ask them to give their testimony). Sometimes you may think someone is essential to your case, and the judge does not agree. Do not push the court to call your witness, but accept the decision of the court.
Also, keep in mind that, some courts allow only court staff and parties to the case in the courtroom. If you bring a witness, the court may ask them to wait in the hall and will call them in if the court determines it necessary. Given this, you’re more likely to get your witnesses' written statement before the judge than the actual witness.
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