A lay witness, also known simply as a “witness,” is any person who gives testimony in a case, but who is not an expert. In a personal injury case, a lay witness may be the plaintiff, the defendant, or someone who saw the accident in which the plaintiff was injured. A lay witness may also be someone whose input is necessary for the judge or jury to determine the appropriate amount of damages, such as the spouse of the injured plaintiff testifying about loss of consortium issues in the household that are caused by the plaintiff’s injury. Most witnesses in torts cases are lay witnesses.
Potential witnesses in a personal injury case are usually identified during discovery. For instance, both the plaintiff and the defendant may be asked to list in their interrogatories people who are likely to know something about the case. The attorneys for each party will often speak to these individuals to determine how much they know. If they can provide useful information about the case, they may be asked to give a deposition. In most personal injury cases, the plaintiff and defendant, at least, will be asked to give depositions.
In both a deposition and at trial, questioning typically begins with the attorney who “called” the witness, or introduced her to the case. This questioning is known as direct examination. Many rules apply to direct examination, but one of the most well-known is that the attorney or party cannot ask any leading questions, or questions that imply the answer the asker is looking for. For instance, “You were at John’s house last Wednesday night, weren’t you?” is a leading question, while “Where were you last Wednesday night?” is not.
The no-leading-questions rule for direct examination exists because the witness, who is being questioned by the party that put her on the stand, is generally expected to cooperate with that party. If the witness does not want to cooperate with anyone, however, the party may ask the judge if he can treat the witness as a “hostile witness.” This does not mean being hostile back; it merely means being allowed to ask leading questions on direct examination.
Once the direct examination is finished, the opposing party or his attorney are allowed to ask questions of the witness. This part of the testimony is known as cross-examination or simply “cross.” Unlike direct examination, cross-examination can be done using leading questions, and it frequently does use leading questions. Cross-examination is allowed to cover only the same ground that the direct examination covered.
After cross-examination, the first attorney may be granted a chance to do a re-direct examination, which usually consists of only a few questions. Likewise, the opposing attorney may participate in re-cross, which will also only consist of a few questions. Re-direct and re-cross give the parties the chance to ask any questions they hadn’t thought of the first time around. Often, however, attorneys will skip these and move on to the next witness.
Unlike expert witnesses, lay witnesses are generally barred from giving personal opinions as a part of their testimony in a deposition or at trial. An attorney who asks a lay witness, “In your opinion, did the defendant act negligently when he failed to slow down before the crosswalk?” is likely to face an objection from the opposing party. However, the rules of evidence in most states allow lay witnesses to give opinions if they are based on the witness’s perceptions and help give a clear determination of the facts in the case. Age, speed, sobriety, and handwriting are common subjects for lay witness opinions that may or may not be prohibited by the trial court.