How to Call the Defendant as a Witness in Small Claims Court - dummies

How to Call the Defendant as a Witness in Small Claims Court

By Judge Philip Straniere

As you’re preparing for trial in your small claims suit, you may wonder whether you should call the defendant to the witness stand as part of your case. In certain situations you do, but generally, unless you’re an experienced trial lawyer in real life, it isn’t a good idea.

Calling the opponent to testify is fairly common in car-accident cases when lawyers are representing the parties involved. The lawyer who calls the opposing party as a witness knows what questions to ask and what responses to expect from the opposing party because the questions will be limited to obtain certain specific facts. Questions won’t be asked that allow your opponent to tell his entire life story.

The danger of calling your opponent to testify is that calling a person as witness on your case means that you’re vouching for that person’s truthfulness, and therefore, you’re stuck with the answers that person gives to the questions you ask. As any lawyer will tell you, if you don’t know what the answer will be, don’t ask a question in court.

It’s not a good idea to call the defendant as your witness in a small claims case because you won’t know how he will answer your questions. Prepare your case under the assumption that the defendant is going to contradict everything you say.

If you do call your opponent as a witness, ask limited questions such as “Is this your signature on the lease?” or “Is this a picture of my car after the accident?” or other questions to which the answer is not in dispute.

That being said, if your case is one of the rare small claims cases in which discovery was conducted and you have sworn depositions of your opponent’s testimony or sworn answers to written interrogatories, you’ll have a really good idea as to what the defendant has previously said under oath.

You can then ask the same questions if the answers help your case and get the information before the court. If the defendant changes his story you can use the sworn statements to contradict the testimony and question his credibility. But to do this takes a lot of preparation. So unless you know what you’re doing it’s probably better not to try it.

It’ s never a good idea to call the defendant as your witness, then slowly walk away from the witness stand, whirl, charge back to the witness stand wagging your finger in his face and shouting, “And where were you on the night of the murder?”

It may be emotionally satisfying, and the stupefied looks on the faces of the judge and the other people in the courtroom may be amusing, but having to come up with bail after you get thrown in jail for contempt of court will probably be less amusing. Stick to the questions relevant to your case.