Posted in Considering Legal Action on May 13th, 2011
If you are a worker reading this blog, it may be because you are considering (or already pursuing) a legal action.
Often, a worker pursues a legal action based only on his or own knowledge, and without additional proof, i.e. without evidence such as documents or witness statements.
This post focuses on the importance of witnesses — i.e. flies-on-the-wall who are independent from you, and who observed actions or statements that would support your legal claims.
Witnesses who observed facts that are important for you, and who are willing to step up to the plate and testify and/or sign a statement about those facts, could help a worker’s case a great deal.
Before beginning or continuing a legal case, here are some things a worker should consider about witnesses:
- Learn what the important facts and legal issues are for your matter before seeking out witnesses.
If you or your attorney don’t know “the issues,” so to speak, then you may fail to ask a witness questions about the right topics and events. It is a common mistake for workers to gather witnesses for “character evidence” (e.g. the witness will say you’re a good person who did nothing wrong at work), but such character evidence is often irrelevant in employment law proceedings, and some judges will specifically warn they do not want “character witnesses.” Be sure you know the issues before you consider which people may be witnesses with knowledge about those issues.
- Think carefully about the issues and write down detailed questions before a witness is contacted.
The questions that you (or your attorney) write are best if based on the legal claims and facts pertinent to those claims. Planning and writing detailed questions is usually worth the effort because it helps cover important issues during the course of witness contacts.
- Know that, generally speaking, former employees make better witnesses for a worker than do employees currently working for the employer you have a dispute with.
This relates to the obvious point that many employees are scared to testify against their current employer and fear losing their job if they do. If you contact a current employee who you don’t fully trust, there is the additional risk the employee may tell the employer (or tell someone else who tells the employer) that you are nosing around about a potential legal claim and witness support. In response to word of a potential legal claim, it is common for employers to tell workers not to give witness information or statements to others.
Former employees are not subject to these pressures, and are usually less restricted in stepping up to tell the truth, sign a statement, and/or testify at a legal proceeding.
- Plan to ask for, and arrange, a witness statement in writing.
If you talk to a witness who has important factual information, that witness’s information is much more useful in a legal proceeding if it is documented, i.e. written and signed. Most employment attorneys are very well-versed with obtaining written witness statements, and in doing so in a formal and effective way. Often, attorneys obtain affidavits or declarations, that have legal captions, are notarized, and/or other formalities.
If you (with or without an attorney) obtain helpful information from a witness, it is typically best that the witness sign a written statement that contains that information, and which is of course has been reviewed and verified as true by the witness before signing.
Generally speaking, a worker’s chances of proving his or her side of the matter is correct can greatly improve if there is supportive (and true) information and statements from independent witnesses as well.