How to Choose Not to Be Your Own Witness in Small Claims Court - dummies

How to Choose Not to Be Your Own Witness in Small Claims Court

By Judge Philip Straniere

If you’re filing your case in small claims court, you’re probably willing — if not downright eager — to be a witness and get into the courtroom and tell your side of the story. In most cases, it goes without saying that you’re going to serve as one of your own witnesses.

However, if you have agoraphobia, a fear of public places, or are afraid that you’ll blow your own case simply by opening your mouth, you may consider having someone else with knowledge of the facts testify in your place.

How to send someone to court in your stead

In most cases, whether you’re the plaintiff or the defendant in the case, you need to be the one standing in court if you want to win. You can’t give someone an affidavit or a power of attorney and have him stand in for you for the following reasons:

  • You’re the one who was there; you’re the one who knows the facts. It’s in your best interest to be the one presenting them.

  • Your opponent is legally entitled to cross-examine you in court. It’s impossible to cross-examine someone who doesn’t show up.

One exception to this rule is a situation in which you’re the owner of a car claiming property damages after a crash. However, your spouse was the driver of the car, so you don’t have information as to how the accident happened. The driver of each vehicle and any passengers or witnesses would be the ones to testify. You should attend the trial but you won’t get a speaking part.

How to use a power of attorney

Most people have heard of a power of attorney, but few people understand exactly what it means. A power of attorney is a document in which one person, the principal, appoints another person, the agent, to act in the principal’s place. In court, the agent is the attorney-in-fact for the principal.

So if you appoint your brother-in-law by using a power of attorney to stand in your place and make decisions for you in court, you’ve made him attorney-in-fact for the specific case. And you’d better have a lot of faith in his judgment, because his judgment, not yours, will determine how your case goes.

You can use a power of attorney for a specific event or transaction or give a general power of attorney to govern all of your affairs. You may want to use a power of attorney in small claims court if you can’t attend the trial yourself.

Suppose you and your spouse are plaintiffs, have an equal amount of information about the case, and both have an equal stake in the outcome. The day of the trial, one of your kids is sick, so one of you has to stay home. Your spouse gives you a power of attorney and with it, the authority to settle the case by a written agreement rather than go to trial.

Because both of you are plaintiffs with knowledge of the event, you wouldn’t need the power of attorney to participate in the trial. If you lack any knowledge of the event, having a power of attorney won’t help at the trial, because you’re basically window dressing and can’t testify as to the facts.

One situation in which a power of attorney can come in handy is if there are other witnesses to testify on your case. For example, your spouse owns the car your daughter was driving at the time of the accident. The property damage claim is brought in your spouse’s name, but she’s away on business. The power of attorney would allow you to participate in the trial.

How to obtain a power-of-attorney form

You must put a power of attorney in writing; an oral power of attorney is useless. Each state has its own preferred form for creating a power of attorney. If the form isn’t properly filled out, it’s ineffective.

Power-of-attorney forms are available in legal supply stores, office-supply stores, and even convenience stores. They also may be available online. The problem with buying a form at a place other than a legal supply store is that the state legislature sometimes changes the requirements for a valid power of attorney. If you use an old, undated form, then the attorney-in-fact is not properly established, making the form useless.

Sometimes banks and other such institutions have their own power-of-attorney forms. These may or may not comply with the statutory form in your state and the form preferred by the court system.

The same problem exists with a power of attorney you find online; because the forms aren’t universally accepted, an online version may not pass muster in your local court.

Determine whether you can use a power of attorney

Can you use a power of attorney in small claims court? Guess what. The answer is, as in so many other things in court, maybe. Some states don’t allow anyone to act as an attorney-in-fact; other states allow them, and some states allow them only in certain circumstances.

Even if your state permits you to use an attorney-in-fact, the small claims court may require you to submit your paperwork in advance of the trial so that the court can review the form and determine whether it’s properly executed.

If, for some reason, the court won’t accept the power-of-attorney forms for review before your trial date, it probably makes sense for you to have a lawyer either prepare the form for you or review it before you try to use it.

If you send someone to the trial with a power of attorney that’s not filled out properly, it will be deemed defective and may be fatal to your case. If you’re the plaintiff, your case will be dismissed. If you’re the defendant, the court may declare you in default and enter a judgment against you.