(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to prepare for being a fact witness at a trial or hearing. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)
A Fact Witness at Trial
This Guide has been prepared to assist you in understanding and fulfilling your role as a fact witness at trial. A fact witness is a witness who gives evidence about his or her knowledge of matters relevant to the proceeding, as opposed to an expert witness who gives opinion evidence. Please read this guide carefully, as you prepare for testifying and for our pre-trial preparation meeting. Please be sure to note any questions you may have about the process so that we can discuss them at our pre-trial preparation meeting.
The witness stand is usually to the judges left (or, if you are facing the judge, on his or her right). Unlike television trials, Ontario witnesses usually stand while giving evidence. For lengthy sessions or where a witness is unable to comfortably stand, the judge may give permission to a witness to sit. It is preferable to wait until given such permission before sitting down. If you feel standing will be difficult for you, please let me know at our pre-trial preparation meeting and at the trial, I will ask for permission for you to sit while giving your evidence and I will ensure that a chair is available in the witness box.
Public seating is also available, although the amount depends on the size of the courtroom.
The Courtroom Officials
Each judge usually has a sheriffs officer or deputy who is assigned to provide assistance to the judge. This official usually sits on the judges right (or, if you are facing the judge, on his or her left). In large courtrooms, there is sometimes a second deputy who will sit at the door.
There is also a registrar or clerk who usually sits directly in front of the judge. The registrar will show you to the witness stand and will administer the oath to you.
A court reporter will sit directly in front of the witness stand.
I and the lawyer for the other side will sit at the counsel tables which face the bench.
The court reporter will record the questions asked and your answers by tape recording, stenomask or shorthand. For that reason, you should speak slowly and clearly so that there will not be any errors in transcribing your evidence. If the reporter cannot understand you as you give your evidence, it is likely that the judge will also have difficulty understanding you as well.
What to wear?
Always a vexing question but here the answer is simple. Dress neatly and avoid clothing and jewellery of which your conservative grandmother would disapprove.
Sometimes an order is made excluding witnesses at trial. If that is the case, I will advise you of that prior to the trial, and you should remain in the corridor outside the courtroom until called by the deputy or me. Otherwise, you may sit in the public seating area of the courtroom until I call you to give evidence.
At that point, you should proceed to the witness stand where the registrar will meet you and administer the oath.
You will be asked if you wish to swear on the bible or be affirmed. You may choose to simply affirm the truth of your evidence. The purpose is to have an oath that will bind your conscience under penalty of perjury.
Form of address
The judge is referred to as Your Honour. Sir or Madam is also permissible. Be sure to address the other lawyer politely. Your demeanour is constantly being assessed by the trial judge as an aid to determining your credibility.
Examination in chief
The series of questions that I ask of you is called the examination in chief. I will begin with a series of leading questions dealing with non-controversial aspects of your background, education and work experience. For instance, in dealing with your educational background, I will ask a question such as: You graduated from Eastern General High School in Toronto, Ontario with a secondary school completion certificate in 1987. Is that correct? You should be able to answer a simple Yes to these questions.
Once those preliminary questions have been completed, I will have to shift to non-leading, open-ended questions to deal with the substantive questions relating to the matters in issue. In a motor vehicle injury case, for instance, I would ask such a question in a more open-ended way: Please describe the weather conditions at the time of the accident. This approach also makes your evidence more believable as you are presenting it in a manner which you have chosen yourself.
If you have a witness statement, I will generally be using the contents of that statement to frame my questions to you about your personal knowledge of facts that are relevant. You are not allowed to have the witness statement with you on the witness stand.
You will probably have heard of hearsay from watching courtroom drama on television. Hearsay evidence is evidence that comes from others and was not personally observed by you. For instance, if your co-worker told you that another employee was late on a certain date, but you did not observe that lateness yourself, such evidence would be hearsay if you were to try and introduce it. While there are a number of exceptions, generally, hearsay evidence is inadmissible. During our preparation meeting, I will try to review any evidence that may fall into this area to ensure that you do not inadvertently attempt to give such evidence.
Where you do give evidence to which the other side takes objection, the opposing lawyer will speak up and advise that court of the objection. Do not answer the question at that point. Usually, the judge will listen to the arguments of both sides and make a ruling as to whether or not you should answer the question. Sometimes the judge may ask you to wait outside the courtroom while the argument is made. This is to avoid the possibility of any comments made during the argument affecting your answer.
Once I have completed my examination in chief, I am not allowed to speak with you until you have completed your evidence (in fact, once you even start your evidence, I am not allowed to discuss any evidence which you have given and any discussion of evidence between us is limited to matters and topics about which you can or may give evidence later in your examination). Similarly, you are not allowed to discuss your evidence with any other person during this time. This is to ensure that no improper coaching or communication takes place. Often the trial judge will remind a witness of this obligation. For this reason, and to avoid any appearance of impropriety, you and I will not speak, meet or eat together until completion of your evidence.
After I have completed my examination in chief, the lawyer for the other party or parties are entitled to ask you questions. Usually, these questions are more pointed and leading than the questions in examination in chief. Be sure that you understand the question if you are asked to answer with a Yes or No. Do not be bullied into an answer that would be misleading by answering Yes or No. You are entitled to give your explanation.
If there was an answer in your cross-examination that is ambiguous or appears to contradict your evidence during examination in chief, I am entitled to ask further questions by way of re-examination to clarify your evidence. I do not ask these questions unless they are very important so please pay careful attention to the questions. Unlike some other jurisdictions, I am not allowed to speak with you about these questions, except while asking them, so I do not always know what your answer will be.
The judge may have questions
After counsel have finished their questions, the judge may have some questions for you. The judge is seeking clarification on a point of significance to him or her so that these will be important questions. Look at the judge while answering, rather than at counsel or the floor. Do not argue with the judge. After the judge has obtained your answers to his or her questions, you may step down. You are free to leave the courtroom at that point.
From time to time, a judge may wish to have something clarified and may ask a question immediately rather than waiting until the end. You should expect that a judge may ask questions at any point in the trial.
Always stop talking if the judge is speaking.
PREPARATION FOR GIVING EVIDENCE AT TRIAL
Pre-trial preparation meeting
You and I will meet to discuss the areas of questions that I will be asking of you and topics that I expect the opposing lawyer will ask you on the cross-examination. It is vitally important to be well prepared for this testimony.
Read or re-read the pleadings and any documents or discovery transcripts that I have sent to you. I would ask you to read the statement of claim and statement of defence (the pleadings) very carefully prior to our pre-trial preparation meeting. The pleadings set out the nature of the dispute between the parties in a summary way and indicate the positions of the parties on the issues in the lawsuit. There may also be documents or discovery transcripts that I may ask you to review. If you do not have copies of any of these, please contact Robin McCurrach ((416) 362-4000 Ext. 224) immediately and she will send them to you. If you gave discovery evidence or were cross-examined on an affidavit earlier in the proceedings, be sure to re-read the transcript until you are fully familiar with it. Re-read any documents of which you are the author and be familiar with other documents responding to yours. If you have any questions concerning your evidence you should raise them at our meeting.
CONDUCT AT THE TRIAL
You must answer the question unless I object
You are obliged to answer those questions unless I object to any particular question or questions. If there is an objection, do not answer the question until the judge has ruled that the question must be answered.
Opportunity to clarify answers
The lawyer for the opposite party will try to obtain answers from you in cross-examination that will help the opposite party's case and hurt yours. Do not be concerned if I am not continuously objecting; there may be no reason to object or interrupt. I do have the right to re-examine or ask further questions when the lawyer for the opponent is finished in order to clarify or enlarge your previous answers as may be necessary.
I would suggest that you keep the following simple guidelines in mind for answering the questions put to you.
Any questions? If you have any questions about giving evidence at trial, please contact us at:
W. Bruce Drake Hooey Remus Telephone: (416) 362-2051 Facsimile: (416) 362-3646 330 Bay Street, Suite 210 Toronto, Ontario M5J 2S8 eMail: firstname.lastname@example.org Website: www.hooeyremus.com
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