Can Witnesses Be Forced to Testify in Personal Injury Cases?

All case fought in a court requires evidence. This evidence can be photographs, voice recordings, or even testimonies. A statement or testimony from a witness can significantly increase your chances of recovering fair compensation for your damages after an accident. Having someone to support your claim comes in handy in court. It will persuade the judge and jury to decide in your favor.

Witnesses can provide essential information about an injury and related matters, such as the extent of the plaintiff’s damages. Some witnesses are willing to provide testimony and information without being compelled to do so. But others may be reluctant. This could be for any number of reasons.

With an experienced attorney on your side, you may be able to convince an unwilling witness to testify on your behalf. Below, we discuss some of the legal options available when dealing with reluctant witnesses during a personal injury case.

Can a Witness Refuse to Testify?

No. A witness does not have the same right to avoid testifying as a defendant has. Accordingly, a witness may be forced to testify. The witness may be held in contempt of court if they refuse to testify after being ordered to do so. While a witness cannot decline to testify, that does not obligate them to provide any requested information.

What If a Witness Refuses to Testify Anyway?

If a witness refuses to testify on your behalf, your personal injury lawyer does have options. Some of them are informal. Your lawyer may talk to them and let them know how important it is that they testify. Or, they let can offer alternate ways of testifying.

Witnesses who don’t want to come to court and testify at trial may have alternate ways of testifying. Some of these include:

• Deposition – You can allow a witness to testify in a conference room with a court reporter present. This takes place prior to trial. It is usually done in an effort to gather evidence to help you negotiate a settlement.
• Affidavit – A witness can sign a written statement telling their version of events. This statement is notarized and can be relied on in court.

Requesting Your Doctor to Testify

Once you and your attorney have determined it would beneficial for your doctor to testify at trial, you will need to ask your physician to do so. Many doctors are familiar with personal injury and workers’ compensation issues and will have testified at trials before. However, all medical professionals have the right to decline to testify in court. To limit the chance of a rejection, you and your attorney should impress upon your physician how crucial it is for your case to have testimony regarding your injuries, necessary treatments, complications, and future medical needs. If your physician still refuses, do not take it personally. Instead, discuss with your attorney the best options for moving forward with your case.

What If Your Doctor Refuses to Testify

There are two main strategies to deal with your physician refusing to testify at trial. You have the right to subpoena your doctor to testify in court. A subpoena requires the physician to appear in court on a certain date or be penalized. This is usually only done if it is absolutely necessary to have your doctor testify in court since a professional will not appreciate being forced into a court case. Professionals who are forced to testify against their wishes can be difficult on the stand and not cooperative with your attorney. This can do more harm than good.

Your second option is to work with expert witnesses who can review your records, examine you, and provide information about your injuries, treatments, medical needs, and expenses based on their specific education, training, and experience.

What is a Subpoena?

A subpoena is a request for the production of documents, or a request to appear in court or other legal proceeding. It is court-ordered command that essentially requires you to do something, such as testify or present information that may help support the facts that are at issue in a pending case. The term “subpoena” literally means “under penalty”. A person who receives a subpoena but does not comply with its terms may be subject to civil or criminal penalties, such as fines, jail time, or both.

There are two types of subpoenas. The first, called subpoena ad testificandum, requires you to testify before a court, or other legal authority. The second, called subpoena duces tecum, requires you to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of matter, but the most common requests are from divorce, child custody, personal injury, and sex offender cases.

Using Subpoena to Get a Witness to Testify

Sometimes, people deliberately avoid giving testimonies. At such moments using a subpoena is the only option. A trained attorney knows when and how to subpoena a witness. For an attorney, his client’s benefit matters the most.

It is important to understand what the purpose of a subpoena is, however, before establishing whether this common practice is relevant to your injury case.

There are three types of subpoenas during a legal proceeding:

• Witness subpoenas
• Subpoenas for production of evidence
• Deposition subpoenas

When a witness subpoena is issued, it means the person must appear in court to testify on behalf of a party to the lawsuit. If the issued subpoena is for a deposition, the witness must appear at a recorded question and answer session. Both parties to the lawsuit and their legal representatives must also be present.

Anyone who fails to comply with a subpoena will be held in contempt of court and could face other serious legal consequences.

Reasons a Witness May Be Reluctant to Testify

• Privacy concerns
• Fear of retaliation
• Anxiety about testifying
• Time commitment
• Inconvenience

What Are Witnesses’ Rights in a Criminal Case?

In a criminal proceeding, witnesses have the following major rights:

1. The Right to Avoid Self-Incrimination

This practice is known as “pleading the fifth.” That basically indicates that the witness is asserting their Fifth Amendment right to not testify against themself. Once more, this right does not permit a witness to completely decline to give a statement.

1. Right to Not Be Harassed

Although the Constitution does not explicitly grant this right, almost every evidence code contains some sort of prohibition on harassing a witness. This means that during a direct or cross-examination, a witness cannot be threatened, belittled, or subjected to the same question repeatedly. It is important to keep in mind, though, that if a witness starts to act hostile or uncooperative, a lawyer might be able to press the issue further.

Should You Speak with an Attorney?

Our legal team at Duque Law Group is comprised of award-winning and nationally recognized trial lawyers who collaborate with nurses, doctors and medical experts regularly. Though we understand the nature of injuries, we are not physicians, and always encourage victims to seek treatment as soon after an accident as possible, and to follow up and heed their doctors’ advice.

Call us now at 1-877-241-9554 to learn more about your options. A free consultation is just a phone call away.