A witness is someone who can back up your side of the story in court. Here's how to select a witness, prepare them and make sure they show up when you need them.
A witness is someone with direct knowledge about a legal problem between you and another person. It’s not enough for them to have heard about it from you. Direct knowledge means they’ve witnessed—that is, seen for themselves—the cause or result of your legal situation.
For example, if you are suing your landlord for refusing to make repairs: You can ask a family member, friend or neighbor who’s been inside your home and seen the damage to back up your side of the story. When they back you up in court, they act as your witness.
A word of caution: take care when choosing your witnesses. This person is testifying on your behalf. Make sure that what they say is true and in your favor.
Get a court order for your potential witness
You can call up your witness and ask them to show up at your hearing. But what if they don’t? Or can’t, because of work or an accident? Unless you have a court order for them to show up, there’s not much you or anyone else can do about it.
To get a court order, you can go to the clerk’s office and ask for a form to "subpoena" your witness. A subpoena is a court order that demands action, in this case a summons telling your witness when, where and at what time they need to appear in court. Your witness can use this summons to get the day off work, if they need to. Once your witness gets that summons, they are required to show up. Otherwise, they could get in trouble with the court. Also, if they don't show up, you can request a continuance to have the hearing be postponed. The court makes the final decision on the continuance.
Make sure you and your witness are prepared
You will need to ask your witness focused and appropriate questions when they testify. That takes preparation. You can prepare your questions on your own. Or better yet, you can prepare them with your witness.
Make sure you don’t ask your witness “leading” questions—that is, questions that put words in their mouth or questions that only get a “yes” or “no” response. For example, just one word is needed to answer this question: “You saw the leaky roof on Saturday, March 3, didn’t you?”
Instead, ask questions like:
- “Where were you on Saturday, March 3?”
- “Why were you there?”
- “What did you see?”
A good rule of thumb when you prepare your questions is to remember the four Ws: “who,” “what,” “when,” and “where.”
Lay the foundation first
Remember, testimony from you and your witness is considered evidence. When presenting evidence, you need to lay the foundation. The same goes for questioning witnesses.
In court, you will need to talk the judge and your witness through the facts of your case, step-by-step. Assume that everyone is hearing your story for the very first time and that your witness is telling it for the first time. Don’t skip over facts that you think are obvious.
Here’s an example of what that might look like.
Mary is suing her husband, John, for divorce and wants to prove that John cheated on her. Linda is her close friend and witness. Linda saw John and his girlfriend kissing in a park. Here’s what Mary needs to do to make sure Linda’s testimony is considered “admissible.”
Learn more about what makes evidence “admissible.”
- Mary needs to ask Linda questions about how and why she would recognize John in public. For example, “How do you know John?” “How long have you known John?”
- Mary should ask Linda to describe what she saw and when. For example, “Where were you?” “What day was this?” “What time of day?”
- Mary needs to ask Linda what she saw. “What did you see?” “Are you sure the kiss was romantic?” “Are you sure it was John with another woman, and not me?” “How do you know that?”
- When Mary is finished asking Linda questions, she should say, “Thank you, your honor. I have no further questions at this time.”
- John or his lawyer will be allowed to ask Linda questions next. This is called cross-examination.
You act as a witness when you testify for yourself
You can present yourself as a witness in court. But since you can’t ask yourself questions, you will testify by telling your side of the story. You can prepare by writing out a statement. The statement you prepare should answer the same types of questions that a witness would.
- “Where were you?”
- “When was it?”
- “What happened?”
The judge might ask you a few questions when you testify. But the other side will have to wait until cross-examination.