How to Question a Witness in Your Injury Case

Don’t Wait Until Trial

You don’t have to wait until your trial date arrives to question witnesses. In fact, you shouldn’t wait until your trial date. The sooner you can begin speaking with witnesses, the better. When you talk to witnesses right away after the accident, their memories are often still fresh, and they’re usually more willing to get involved.

Related: Why a Witness Affidavit May Not be Enough in Your Personal Injury Case

Witnesses that don’t have a bias in the case are often willing to talk openly about their observations. If a witness is willing to speak, you can start by being friendly. Introduce yourself, and tell the witness what your relationship is with the case. For example, if you’re the victim, tell them. If you’re calling on behalf of a spouse or a friend, let them know this, too. Ask them if it’s a good time to talk.

Allow Them to Present a Narrative

When you first speak to a witness informally, you can start by allowing the witness to give you a free narrative of the events. They will mention the details that they believe are the most important. Enabling the witness freely speak makes them open up. You often get more information by having the witness tell you what’s most important first.

Ask Follow-Up Questions

As the witness tells you what happened, make notes. Jot down things that are important and things that the witness mentions. Then, you can go back through your notes.

Ask questions about things where you want more detail. Make sure that you explore not only what your witness observed but where they were standing in relation to the accident and what might have allowed them to have a clear or obstructed view of events.

Consider the Elements of the Case and Disputed Issues

Think about the elements of a personal injury claim. Make sure that you cover the when, where, who, why and hows of the accident with each witness. Also, be sure to investigate any potential bias. You can end your conversation by asking if they have anything to add.

Try to make your initial questioning of the witness feel like a conversation where you ask the questions. End the conversation by thanking the witness for their time, and letting them know that you’ll be in touch if it’s needed for the case. Ask them to let you know if their contact information changes in the future.

If a Witness Doesn’t Cooperate

Unfortunately, not all witnesses are cooperative. If a witness just doesn’t want to speak with you, there are still things that you can do to find out what they know. Once your case is formally underway, you can issue a subpoena under Nevada Rules of Civil Procedure Rule 45.

Related: Tips for Dealing with Witnesses in a Personal Injury Case

A subpoena requires the witness to appear at a specific place and time for a deposition. Before you begin, remind the witness that they’re under oath. Dress formally, and make a recording of the deposition to impress upon the witness the seriousness of the proceeding and their obligation to tell the truth.

On Cross-Examination

The witness that you need to interview may not be your witness. They might be a witness for the other side. Even if you’re not the one who calls the witness, you still need to make sure that you question them effectively. You have a chance to cross-examine each witness that the other side calls. If the other side calls the witness, they get to ask them questions first. Then it’s your turn.

When the witness testifies for the other side, take careful notes. Make a list of things that you want to follow up on or things that you question about their testimony. Then, as you cross-examine the witness, you can review your notes and go through their testimony again to ask follow up questions.

Use Leading Questions on Cross-Examination

On cross-examination, you’re allowed to ask leading questions. Rather than leaving it for the witness to think of the right answer to a question, you’re allowed to suggest it in your question. Using leading questions can help you poke holes in a witness’ testimony if they don’t have a good recollection or they aren’t truthful.

For example, “Was it raining?” is not a leading question because the question doesn’t suggest the answer. The question doesn’t imply whether it was raining or not. You can ask “Was it raining?” in direct questioning or on cross-examination.

By contrast, “It was raining, wasn’t it?” is a leading question because it suggests the answer. The question suggests that it was raining. You’re allowed to ask, “It was raining, wasn’t it” on cross-examination.

Remember that you can use leading questions only on cross-examination. You can use them to walk the witness through the facts to arrive at the key points that you want the jury to understand from their testimony. Leading questions can also help you use the witness to tell your story to the jury clearly and in an organized way.

How an Injury Lawyer Can Help

Excellent witness testimony can make or break your case. In your personal injury claim, working with a lawyer is a great way to ensure successful use of a witness. They have years of experience questioning witnesses effectively.

Your lawyer will help you gather solid evidence and witness testimony to strengthen your case.