Robbins: All the kinds of witnesses in a courtroom
Speaking broadly, there are two kinds of evidence presented at trial: testimonial evidence and tangible evidence. People talking on the one hand and documents and physical things on the other.
Tangible evidence can be stuff in writing — contracts, emails, bank statements and others of their like — and physical evidence — the bumper of car, a rope, shell casings, and too many other things to be imagined. I had a case once where we hauled half a ton of heating hose and its various connectors into the courtroom.
Testimonial evidence is, at least sorta, of only one kind — what people, under oath, have to say. But, the spoken word as a given, there are different kinds of witnesses.
First, in a procedural distinction, there are “may call” witnesses and “will calls.” No, no, “will call” does not mean that one’s ticket to the court proceeding will be waiting at the courthouse ticket office. What it does mean is that one side or the other of the dispute has designated a particular person as someone they most definitely intend to call to testify at the legal shebang.
“May calls” are the bench players, if you will — the second stringers. These are folks who have been identified as potential witnesses but, as the name suggests, may not get into the game.
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Another distinction between witnesses is lay witnesses and experts.
Another useful term for a law witness is a “percipient” witness. Let’s step aside for just a moment and define the term. A “percipient” witness is one who perceives, and becomes aware through the senses.
A percipient witness is one who may testify as to what she saw, smelled, heard, touched, or otherwise perceived. Once more, stated in broad strokes, she may not offer her opinions as to what a particular matter means.
That is the job of experts.
An “expert witness” is one who by dint of education, training, or other professional expertise, may offer special insight and opinion regarding a particular matter of consequence in the litigation. An expert witness is a person with extensive experience or knowledge in a specific field or discipline beyond that expected from a layperson. The duty of the expert witness is to apply their expertise to give a professional opinion to the court on particular matters in dispute.
In a recent case, we presented several medical experts to the court to offer their opinions. In that case, too, owing to the particular nature of the claims, engineering experts were trotted out to testify. In an upcoming case, we will offer the testimony of various appraisers, experts in trust creation and interpretation, and at least one expert in forensic accounting and valuation.
Unlike a lay witness, who cannot give an opinion about topics that require special knowledge, an expert witness can testify as to their opinion within their expertise. Rather than something off the cuff, however, an expert’s opinion must be based on sufficient facts or data and reliable principles or methods.
The major function of an expert witness is to express their independent professional opinion based on the information provided.
The last species of witnesses worth mentioning are “hostile” witnesses. And this deserves a special detour.
Generally, a witness that one side or the other calls in support of their case (in what is known as “direct” examination) must be asked open-ended questions. “Can you please tell us, sir, precisely what you saw that day?” In “cross-examination,” however where a witness’s testimony may be challenged by the other side, things get a little rougher. In “cross” the answer to a question may be suggested. These kinds of questions — where the answer is suggested — are known as “leading.” “Isn’t it true, sir, that your view of what you say you saw that day was obstructed by the semi in the lane beside you?!”
Technically, a “hostile witness” is known as an “adverse witness.” But, by whatever name you call one, it is a witness who, in a trial, is found by the judge to be hostile (or adverse) to the position of the party whose attorney is questioning him or her, even though the attorney called the witness to testify on behalf of their client.
When the attorney calling the witness finds that the answers are contrary to the legal position of their client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be “hostile” or “adverse.” If the judge declares the witness to be hostile/adverse, the attorney may ask leading questions that suggest answers or are challenging to the testimony just as on cross-examination of a witness who has testified for the opposition. In my experience anyway, this is pretty rare. By the time an attorney has teed up their case, they generally know where chips of testimony are likely to fall.
The courtroom is a fascinating place. And what makes it the most fascinating of all are people in their various shapes, sizes, dispositions, and orientations. As I have observed many times before, the law is stories — stories about people and their lives — and witness testimony is so often where the tale dramatically unfolds.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.
