By testifying at a deposition or trial, witnesses present critical evidence in support of a case. Given their importance, the selection of witnesses is one of the most intimidating yet rewarding tasks to perform in a civil case.
There are three types of witnesses, lay, expert, and character. An expert witness is a specialist or someone who has superior knowledge or training in a particular topic area. Examples of expert witnesses include doctors, plumbers, engineers, carpenters, and psychologists. On the stand, the expert witness testifies with regard to his specialty area only.
A lay witness is a person who observed first-hand one or more events relevant to the case. On the stand, that witness testifies only to what he observed. A character witness is someone who knows a person involved in the case and can speak regarding that person’s personality or reputation. Character witnesses can be friends, neighbors, teachers, family, and so on.
Below are 8 things to know about selecting your witnesses.
1. Your Pro se Status May Influence Your Selection
Lawyers have a proven record of trust with doctors and other experts. In personal injury cases, for instance, they will take a client on a contingency basis. Once they get the case, they run it through a well-oiled system of people, forms, and documents. This makes things easier for all involved.
An attorney’s office may contact doctors on behalf of the client and assure them that they’ll get paid. Sometimes it takes a letter from the client, but doctors trust the process. Self-representation, by contrast, is unfamiliar to them, and they may be reluctant to get involved.
So, assure your doctor that he or she will be paid no matter what. One way to do that is to pay them on a regular schedule to earn their trust. You can also write your own letter of protection. In the letter, be sincere. Though you can subpoena your doctor, it’s best to have him in your corner when you need him.
2. Economics Will Influence Your Choice
A lawyer working on a contingency basis is likely to work hard to settle the case before hiring an expert witness. If that doesn’t happen, and they pay an expert, their client pays. That money comes off the top of any settlement or judgment the client gets.
When you’re pro se, you select the experts and pay them out of your own pocket, usually upfront. Let’s say you need to prove that period pain is psychological. You must find an expert that is on board with that theory. Once he’s on board, you’re responsible for paying him. You may pay $200 an hour or more for a consultation and $3000 or more for a trial appearance, including travel expenses. So choose wisely.
3. Finding Gaps in Your Case Helps With Witness Selection
To determine the witnesses you need, know where the gaps are in your case. That is, identify the elements (facts) of claims, counterclaims, or affirmative defenses.
Let’s say that the 3 elements of a claim for negligence are (1) a duty; the defendant has an obligation to do no harm to the plaintiff; (2) a breach of that duty; the defendant failed to observe or honor that duty; and (3) an injury to the plaintiff due to that breach. The only way you can prevail is if you prove all of the elements. To show that you have them, you must state facts and back up those facts with evidence.
Proving some elements of a claim requires very little, like an appellate case or statute. At other times, it may require written discovery. However, some cases need witness testimony to prove an element of a claim. So find the gaps in evidence to determine who to select as a witness.
4. The Earlier You Start Looking, the Better
This may sound counterintuitive, but once you’ve analyzed your case and know where the gaps are, start thinking about witnesses. Yes, it seems easier to wait until after discovery to select witnesses, but it’s best to look for them and consider them as part of your case strategy and analysis.
Starting early is important for lay witnesses because they may forget things. What did they really see? Too, they may move or have other intervening issues. So it’s smart to identify them now and get them on board early.
It’s also important to consider and bring on expert witnesses as soon as you realize you need them. They need time to review and analyze your case and to understand your theory of the case. Then, they can determine if and how they can help you.
5. Making a List of Witnesses Helps Things Go Smoothly
Making a list of potential witnesses will help you organize, add, and discard as needed. Let’s begin a list using the three elements for negligence described earlier, duty, breach of duty, and injury.
Belinda was hit on the head by a ball thrown by one of a group of young men outside a Target store.
No witness is needed to show duty here because Belinda will likely find appellate cases with facts similar to hers that support the element of duty. There is also bound to be a statute that she can rely on. She doesn’t need a witness for the element of duty, so nothing goes on her list.
Proving the other elements requires more. Belinda could sue all the men and send each interrogatories and requests for discovery. She can review responses and identify the actual men that breached the duty. She could in all likelihood prove breach of duty with written statements, case law, and statutes.
As for the element of injury, this is where things get complex. Belinda can provide medical records, but to be properly compensated, she may have to prove the severity of her injuries and their effect on her quality of life. To do so, she may have to call witnesses. Belinda writes two names on her list.
6. Know How Each Witness Can Help You
By analyzing her case and handling discovery well, Belinda goes a long way towards selecting witnesses. She begins her list with two people, her husband and her gym instructor. Her husband will testify about her bad dreams and sleepless nights. Her gym instructor can testify that Belinda came to the gym regularly, but she all of a sudden stopped the day after she was hit by the ball.
Belinda though needs medical witnesses. To her list, she adds her own neurologist and psychologist as expert witnesses. They can testify about the severity of her injuries.
7. Credentials, Experience, and Knowledge Count
It’s a no brainer. The witnesses you select should know what they’re talking about. An expert witness must come with credentials and experience on the topic you need him or her to testify about. In a personal injury case, a doctor to speak about your actual injuries is gold, while an engineer or architect are better suited for a case about an industrial accident.
In addition to credentials and knowledge, an expert should understand both sides of the case and be believable. If Belinda’s experts can’t do all that’s required, she may need additional witnesses. She can select an expert she doesn’t know and pay him or her to examine her for a “second opinion”.
As for other witnesses, only choose those who can speak on certain matters and can help you introduce evidence in a trial. Belinda can add to her list an innocent bystander who saw the whole thing and appears to be trustworthy. An employee who previously asked the same men not to play ball in front of the store may also be good. A third witness might be a man who was with the guys throwing the ball but did not participate. All of them are good as long as they have the necessary knowledge.
8. Do you really need that witness?
For some, raising the cost of litigation for an opponent is a good strategy. However, if your strategy is to spend less time and money, eliminate witnesses when possible. Witnesses are costly.
Affidavits, subpoenas, and discovery requests are all more efficient and less costly than witnesses. This type of discovery can get evidence on the record and clarify issues so much that you may be able to determine early where to cut your witness list.
There are however some witnesses who may not be the best for your case. Witnesses that go off on tangents too often, witnesses that can’t keep their emotions from being part of the case, and witnesses that are inclined to fabricate or exaggerate may harm your case more than they can help. So, before any witness makes it on your final list, be sure to carefully vet them and know what they are likely to say and do.
Witness testimony might be intimidating, but it is one of the best, most dramatic, and most effective ways to get your evidence admitted. So carefully selecting your witnesses is well worth your time.
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