Judges as Witnesses

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A small claims judge has great discretion to climb down off the bench to check out an important fact. Asking a judge to check out a key fact in your case can be a valuable technique in some situations. For example, in disputes involving damaged clothing it is routine to bring the damaged or defective garment into court for the judge's examination. Indeed, it normally makes sense to bring physical evidence that meets these three criteria:

  • showing it to the judge will help your case
  • it will fit through the door, and
  • bringing it into the courtroom is not dangerous or inappropriate, as would be the case with an animal, firearm, or extremely dirty or smelly items.

But what if your evidence is impossible to bring into the courtroom, such as a car with a poor paint job. Be creative and understand that judges have flexibility and discretion about how to handle their cases. For example, you could ask the judge to accompany you outside the building to the parking lot to examine the car. Many judges will cheerfully do so if you make a convincing argument as to why it is necessary to understand the dispute (and especially if it won't take too long). One judge I know was disturbed one morning when two eyewitnesses gave seriously contradictory testimony about a traffic accident. He questioned both in detail and then took the case under submission. That evening, he drove over to the relevant corner. Once there, it was clear that one of the witnesses couldn't possibly have seen the accident from the spot on which she claimed to be standing (in front of a particular restaurant). The judge decided the case in favor of the other party.

Don't waste a judge's time. Never ask a judge to take time to leave court to view evidence if you can establish or prove the same point by other means, such as by presenting the testimony (or letter) of a witness or by showing the judge a photograph.

Small claims court judges may independently consult expert witnesses. Many small claims judges keep lists of "experts" whom they consult from time to time regarding particular issues in medicine, dentistry, plumbing, auto repair–you name it. If a judge is going to do this, he or she should tell the parties so they have some idea where the decision is coming from. If you think the judge is considering such a step, don't be shy about asking if that is indeed the intention and what expert the judge has in mind. It would not be untoward, for instance, to ask the judge to state in the written judgment the source of any expert advice. The worst the judge can do is say no.

A judge may go on a "walkabout." A colleague who was deciding a small claims neighborhood nuisance case went out and walked through the neighborhood in question, getting a stronger understanding of the problem than if he had remained in the courtroom.
–Judge (Ret.) Roderic Duncan

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