WITNESSES!—Part 1 of 4: Availability of the Witness

The title of this article—with an exclamation point—says it all. Witnesses are often considered to be the secret weapon and the best evidence to present in Court. However, the reality is quite different than most of us believe. Witnesses are limited by a number of factors including:

  • Availability
  • Willingness
  • Court Rules
  • Credibility

AVAILABILITY OF THE WITNESS: The “availability” of a witness means three things: whether there is a witness (someone actually saw or heard something); whether that person is able to testify in Court and, sometimes, whether a litigant can afford to pay what a witness is charging. This article briefly touches upon a few of the many considerations when determining witnesses—and how a Court’s interpretation of the issue affects those determinations. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.

Often a Client will believe that they have a witness to an event, only to be told that the witness didn’t actually observe or hear the situation themselves. The “witness” was only told about something or heard about it elsewhere. This means that the testimony would likely constitute “hearsay”—and be prohibited by evidence rules. The rules do provide for certain exceptions to the hearsay exclusion, but most “hearsay evidence” is not an exception and will not be allowed in Court.

If there is an actual witness to an event that is set to testify in Court, whether the person can be present in Court or whether they can testify by telephone from a remote location is also a consideration. Work demands, schedule conflicts and the physical distance between the witness and the Court must be considered. Even if a witness is available to testify, unexpected work emergencies and weather can be a factor. Inclement weather such as a snow storm on the morning of the hearing or a work emergency for the witness (especially for expert/professional witnesses) can interfere. Testimony by telephone is often available with advance permission from the Court (your divorce attorney will need to file a motion for telephone testimony) — but there is no guarantee the Court will allow telephone testimony.

A third factor to consider with witnesses, is the cost. Many professions such as doctors or therapists charge an hourly fee. These fees are often hundreds of dollars an hour since they have to miss appointments with their own clientele to be available for testimony. One surgeon who was subpoenaed as a witness in a case charged $1200 per hour and the full amount was due for any portion of the hour and was to be paid up front—with a 2 hour minimum. While most are not this expensive, cost must be considered. Not every case can afford every witness—even when it would be ideal to have that witness testify.

Our next article will discuss the Willingness of the Witness…