Question Categories for Small Claims Court - dummies

Question Categories for Small Claims Court

By Judge Philip Straniere

Questioning witnesses in small claims court isn’t really rocket science, but it does take preparation and considerable thought. You want your questions to elicit the testimony you want to help your case and not aid the defendant in proving his defense or destroying your case.

Think about what you want each witness to prove and then write down the questions you think will get the witness to say that information on the record for the judge to hear.

If you’ve watched any legal show on television, you probably know the two categories of witness questioning:

  • Direct examination: The person who calls the witness asks the questions first.

  • Cross-examination: The opposing side questions the witness after he testifies under direct examination.

If you call the defendant as your first witness, when you ask the defendant questions, it’s called direct examination. Likewise, if the defendant called you as his witness, it would still be direct examination. The key is who called the witness not whose side the witness is on.

After your opponent concludes his cross-examination, the court usually permits redirect and re-cross-examination. Redirect questions are permitted for you to respond to new information that came out on the cross-examination. It’s not supposed to be used to elicit testimony you forgot to get on direct examination or questions you forgot to ask. Re-cross-examination is to be limited to any issues that were raised with the witness on redirect examination.

That said, because this is small claims court, the judge may be inclined to be lenient and let you ask things that you forgot to ask on direct examination. But if you prepared and wrote out your questions and the points you wanted to make with the witness, you won’t find yourself in that position.

In a case involving a car accident at an intersection, situations in which you can and cannot ask questions on redirect or re-cross-examination include:

  • No redirect allowed: After the witness testifies, you realize that you never asked him whether there was a stop sign in the direction the defendant came from. If neither you nor the defendant asked any questions about stop signs on direct or cross-examination, you can’t ask about it on redirect.

  • Redirect is allowed: On cross-examination, the witness states that you had a stop sign in your direction, implying that you didn’t stop. Because the stop sign is a new issue raised on cross-examination, on redirect you can ask either, “Did you see me stop at the sign?” or “Isn’t it true that the defendant also had a stop sign?”

Because this is small claims court and most litigants don’t have lawyers, the court usually lets you ask additional questions that you forgot to ask. Remember, though, that this procedure is at the judge’s discretion. The judge can also refuse to let you add evidence or ask questions you forgot to ask, so get it right the first time.

Someone once said insanity is when you keep doing the same thing over and over thinking you’ll get a different result. This is especially true when you question a witness: You can’t keep asking the same question over and over again because you didn’t like the answer you got.

The judge may not think that you fit the definition of insane, but if you keep doing this you’ll drive him and everyone else in earshot crazy. After the judge tells you to move on and ask another question, do it. But if you prepared your case you won’t have this problem.