Witnesses

Here is an example to show you the difference:

• Open Question: “How long did you work for ABC Company”
• Leading Question: “You worked for ABC Company for 2 years, right?”

Leading questions lead the witness to a particular answer. They are usually answered with a yes or no. Leading questions allow you to control what the witness talks about and often helps you get the witness to give a specific answer. You cannot ask leading questions of the witnesses you call. If you ask your own witness leading questions, the other party has the right to object and the judge may ask you to rephrase the question.

One way to think about leading questions is that you just say what you want the witness to say and then add “right?” or “is this correct?” at the end. 

The other party will also be calling witnesses, once they have questioned them it is your turn. You are allowed to ask leading questions of the other party’s witness when you question them.

Cross-examination is a skill that is difficult even for lawyers to develop. Because the rules in Small Claims Court are more flexible, the judge may simply allow you to respond to what the witness said, rather than, or in addition to, cross examining them. If you think it would be easier to get your point across this way simply ask the judge if you could respond with your side of the story. 

When you cross–examine, you will want to:

• Get the witness to say things that that supports your case
• Try to get the witness to agree to facts you present
• Test the witness’s truthfulness and memory. You can do this by bringing into question their memory of certain events or their truthfulness. Show that they may be biased or that they are inconsistent with their story

Tips for Questioning Witnesses:

• Don’t argue with the witness
• Don’t comment on what the witness says until you are give a chance to reply
• Take notes during witness testimony, noting points you disagree with or want to question them about

It can feel really frustrating when you hear a witness say something that you think is untrue. However, simply saying "that's not true" is not usually the best way to deal with a  witness misrepresenting the facts. Rather, take notes about what they said and when it is your turn to question them, ask them questions that can show the inaccuracy. You won't always get them to admit that they lied or were wrong, but the judge may see that the witness testimony is not reliable.

Example:

Case: Claimant alleges the defendant's dog caused property damage. The defendant's neighbour, Mr. Chen, testifies that he never saw the dog off-leash.

CLAIMANT: Mr. Chen, you've told the court today that you never saw the defendant's dog off-leash in the yard. Is that right?

MR. CHEN: That's right, never.

CLAIMANT: I'd like to show you a text message. This is a printout of a text you sent to the claimant on March 3rd. Can you read the highlighted line to the court?

MR. CHEN: [reading] "Saw Rex running loose in your garden again this morning, you might want to talk to Dave about that fence."

CLAIMANT: You wrote that text on March 3rd, correct?

MR. CHEN: ...Yes.

CLAIMANT: And "Rex" is the defendant's dog?

MR. CHEN: Yes.

CLAIMANT: So on March 3rd, you did see Rex loose in the garden — despite telling the court a few minutes ago that you never saw that happen.

MR. CHEN: I — I forgot about that one time.

CLAIMANT: No further questions, Your Honour.

Re-examination

After the other party cross-examines your witness, you may get a chance to re-examine, as in ask further questions of that witness. During re-examination, you only get to talk about things that came up during the cross-examination. The same rules apply to the other party.

Introducing Evidence

To present a document in court and enter it as evidence you usually need someone, a witness or a party (this could be you), to introduce it to the court. They will need to swear that it is the authentic document (usually because they created the document) and may be needed to explain the content of the document. Again, the judge has a lot of control over the process, so tell the judge you want to present the document and follow their instructions. Described below is the more formal way of introducing a document. 

If you are presenting a document:

• Take each original document and hand it to the court clerk as you tell the judge about it 
• Give the other party one of the copies of the document or tell them which document you will be referring to if you have already given it to them
• You may need to stand in the witness box and swear or affirm the truth of your statements
• Alternatively you may present the document to the court if it is an exhibit to your sworn affidavit - if the judge allows it
• After identifying the document it will be marked as an exhibit

If you are presenting a document to a witness:

• Make sure the other side has a copy of the document
• Give the document to the clerk
• Ask the clerk to mark it for identification and give it to the judge at the beginning of the testimony of the witness who will identify it
• Once it has been identified, ask the clerk to mark it as an exhibit

Objections

An objection is when one party challenges the introduction of a certain type of evidence or question. Objections in court are not as frequent nor as dramatic as shown in TV trials. Common objections include: 

• Inappropriate, leading question
• Asking multiple questions at one time
• Asking vague or confusing questions
• When a witness provides information about something they did not directly witness (hearsay), and
• When a witness who is not an expert witness, gives opinions 

How do I object?

If you think a question the other party is asking an inappropriate question or a witness is giving an inappropriate answer, you:

1. Stand up and say “objection”
2. Say the reason you are objecting (be concise)
3. Sit down
4. The other party may then explain why the question is appropriate
5. The judge makes a decision as to whether to allow the question or not 

If the other party objects to one of your questions, stop talking, sit down and listen. Then make your case. Just because someone objects, doesn't mean your question was wrong! You can argue why your question should be allowed. Someone might object to your question for being irrelevant, but you may be able to tell the judge why it is an important question for your case and they may allow it.