Witness Testimony by Telephone or Letter
What to do if your witness can't appear in person
Need Professional Help? Talk to a Lawyer.
In most small claims courts, there are no formal rules of evidence requiring a witness to testify in person (but be sure to check your local rules). It is often preferable to have a witness appear in court, but this isn't always possible. Judges will accept written statements from both eyewitnesses ("I was there and saw the filthy apartment") and expert witnesses ("I examined the transmission and found that a rebuilt part was installed improperly"). And, a surprising number of small claims court judges will take testimony over the phone if a witness cannot be present because the person is ill, disabled, out of state, or can't take time off from work.
Witness Testimony by Telephone
If you think you'll need to have a witness testify by phone, explain your problem to the court clerk well in advance. If you get a negative response, don't give up–ask the judge when you get into the courtroom. Be sure you also present a letter from the witness stating what the person would testify to if he or she was present in court (for example, your opponent's car ran a red light and broadsided you) and explaining why it is impossible to be there. This letter should look like the first sample letter in "Witness Testimony by Letter," below, except the witness should add:
"Mr. Swift has asked me to testify on his behalf, and normally I would be happy to do so. However, I will be in New York City on business during the months of October, November, and December 20xx and cannot be present.
"I have asked Mr. Swift to let me know the day and approximate time of the court hearing and have told him that I will give him a phone number where I can be reached. If you think it desirable, I will be pleased to give my testimony by phone."
While procedures vary, some courts set up a conference call so that the opposing party has the opportunity to hear what is being said and to respond.
Witness Testimony by Letter
If you present the written statement of a witness, make sure the witness includes the following facts in his or her letter:
For an eyewitness:
- who the witness is–name, age (or adult or minor status), county of residence, and relationship to the plaintiff or defendant
- the date of the event, and
- what that person saw, heard, smelled, felt, or tasted, and where and how it transpired.
For an expert witness:
- who the witness is–name and relationship to the plaintiff or defendant
- the witness's work and education credentials, which demonstrate that person's expertise in the field she or he is commenting on (if these are lengthy, it's a good idea to attach the person's resumé)
- what the witness did to be able to render his or her opinion ("I examined the paint on Mr. Jones's 35-foot Cabin Cruiser and subjected it to the following test...")
- when the witness did the work
- his or her conclusion ("The paint used was not suitable for salt water immersion")
- if possible, an estimate of the cost to redo the work properly, and
- any other facts that have a bearing on the dispute.
Make sure you establish your expert's experience and training. It's a good idea to attach to an expert's letter a separate list of the expert's credentials. If your expert has a résumé listing credentials, attach it to the letter in which the witness states his or her findings. The more distinguished your expert, the more likely the judge is to respect the opinion.
Sample Letter by Eyewitness
Victor Van Cleve
Re: John Swift vs. Peter Petrakos
On September 15, 20xx, at approximately 7:30 a.m, I was parked near the corner of South Dora and 7th Streets in Larchville. I was parked on South Dora, about three parking spaces south of the intersection. Just after 7:30 a.m., I witnessed an auto accident involving John Swift and Peter Petrakos.
I clearly saw Mr. Petrakos's yellow Toyota, which was heading north on South Dora, go through a red light and hit Mr. Swift's blue van, which was proceeding west on 7th, well inside the 25 MPH speed limit. I noticed that the traffic light facing Mr. Petrakos did not turn to green for ten seconds or so after the accident, so it is clear to me that Mr. Petrakos really did go through the light while it was fully red. In short, this was not a situation where Mr. Petrakos was just a tiny bit early getting into the intersection at a light change.
Victor Van Cleve
Sample Letter by Expert Witness
Re: James Dills vs. R & B Construction
I am a fully licensed contractor with 20 years' experience here in Helena (Contractor's License 4021B). For the last ten years I've run my own five-person contracting company specializing in building enclosures and buildings to house horses and other large animals. I enclose a résumé outlining my specialized training and experience in this field.
On April 23, 20xx, I was asked by James Dills to inspect several new stalls he had contracted to be built in the main barn of his Lazy T Riding Stable by R&B Construction.
In my opinion these stalls are seriously below normal industry standards, for three reasons.
1) They are too small for the animals intended to be kept in them. [Continue with details.]
2) Walls and doors are built of plywood too thin to safely contain an agitated animal. [Continue with details.]
3) Construction is so rough and unfinished in several places as to pose a danger of injury to an animal intended to be kept there. [Continue with details.]
In conclusion, I believe the stalls are so poorly constructed they can't reasonably be upgraded to provide safe habitable housing for horses. Were they mine, I would rip them out and start over.