In today’s blog entry, I’ll explain what a lay witness is, why you’ll need at least one for your personal injury claim, and how to choose a good lay witness for your case.
Let’s dive in.
What does lay witness mean?
Lawyers use the term lay witness to distinguish this kind of witness from an expert witness. Expert witnesses will be the topic of a separate post. A lay witness is someone who has information to share by way of testimony in a lawsuit that’s based on his or her own experience.
Usually, that’s because the person either felt, saw, heard, or did the thing that they’re in court to testify about. If someone shows up to testify, but the subject of their testimony isn’t based on firsthand experience, then a judge probably isn’t going to let that person testify in your case.
Now, this is different from an expert witness, such as a doctor. A doctor can testify in your case based just on reading your medical records, even if he or she never saw you in person.
So why might you need a lay witness?
Why do I need a lay witness?
Well, there are certain things that you must prove to win your case. You can think of these as boxes to fill.
- The first box you need to fill with evidence or proof is that the other party, the defendant, was negligent.
- A second box you must fill is with evidence or proof of the harm that was done to you as a result of the negligence, or what we call damages.
- The third box to fill, and is the causal connection between the negligence and the harm done, but that’s usually a topic for an expert witness, so we won’t be covering that today.
One very common way of filling these boxes is with the testimony of a lay witness.
In most cases, lay witnesses will help you prove negligence, damages, and sometimes both. Let me give you an example of what I’m talking about.
Lay witnesses in car accident claim
Let’s say you’re involved in a car crash, and that night you call your brother and tell your brother everything that happened in the crash. And in the days and weeks following the crash, you spend a fair amount of time with your brother and he can see that you’re just not yourself.
While you used to bike together a lot on the weekends, now you don’t go as often. And when you do go, you ride slowly and you have to stop often to manage the pain in your knee.
In this particular example, your brother would not be a very good negligence witness, because everything that he knows he heard about from you over the phone, he didn’t learn anything about the crash firsthand.
So a judge wouldn’t let your brother testify about the negligence.
On the other hand, your brother may make an excellent damages witness because he has seen firsthand the harm that is resulting. And an example of that harm is the change in the way that you recreate and how you appear to be feeling when you’re spending time together.
Let me offer a different example.
Lay witnesses in slip and fall claims
In a slip and fall case, a good negligence witness might be somebody who observed the icy condition of the walkway or somebody who complained about the condition of the property in the days or weeks before you fell.
How to identify good witnesses for your injury claim
While finding a lay witness to testify about fault or negligence, sometimes requires a little bit of luck, damages witnesses are often easier to come by. And a little bit of creativity can be very helpful here.
Usually, the best damages witnesses are somebody that you
u know from your community, someone who knows you well enough to have observed you both before and after the injury, but not so close to you that they have a stake in the outcome of your case because that can undermine their credibility.
The obvious choices here are coworkers and friends.
But sometimes there are people in your community, such as someone in your church group, or someone with whom you share an activity from time to time, even a local shopkeeper who you only see a couple of times a week at most, who can make excellent damages witnesses.
Example of a good lay witness
Interestingly, sometimes it’s what the person doesn’t see that matters more than what they did see. For instance, if you used to participate in a group bike ride or a group run every weekend, and then you haven’t shown up for six months, testimony about your absence can be every bit as powerful as the fact that you do show up from time to time but you’re slower and hold the group up.
It’s important to be thinking about people who can fill these roles early in your case.
The more people you and your lawyer have to choose from as lay witnesses, the stronger your case will be in the end.
Summary “What is a lay witness?”
Your takeaway from today’s blog is these:
Number one: a lay witness is somebody who has testimony that can be helpful in proving a part of your case.
Number two: a lay witness must testify based on their own firsthand experience.
Number three: the same person can serve as a liability witness, a damages witness, or both.