Information for Witnesses

by Richard Steinecke
Steinecke Maciura LeBlanc

Originally printed in the Fall 1995 issue of Communiqué.

There are two kinds of witnesses in a trial or hearing. People who observe things in the ordinary course of their lives, including their professional lives, are called "fact witnesses". The testimony of fact witnesses is confined to events the witness has personally observed. Fact witnesses are not allowed to state opinions in the trial or hearing. If you happen to see some incident in the course of your practice, you may be required to testify just as if you happened to see a traffic accident while waiting for a bus.

If you are a fact witness, you will be treated just like any other fact witness. That means you will probably be served with a summons and, if summoned, you must attend and answer all questions truthfully.

However, people who practise learned professions, such as physiotherapists, can also be "expert witnesses". Expert witnesses are called to give opinion evidence in their area of expertise.

Physiotherapists get to be expert witnesses in two ways. One way is to have a patient sue someone for causing an injury that you have treated. In that case, you have a duty to assist your patient by testifying as requested even if you are not paid beforehand. You may also receive a summons for this testimony.

Sometimes, injured people (or, more often, their lawyers) go to a physiotherapist or other practitioner who is not treating the injured person to get an independent opinion expressly for the purposes of a trial or hearing. In this case, you are free to decline any involvement in the case, and you may also require payment as a condition of your participation.

If you are going to be a witness, it is advisable to insist on meeting with the lawyer who wants you to testify before the trial or hearing. The lawyer should tell you the questions he or she will ask you and the lawyer should also tell you what he or she expects the other lawyers to ask you.

When you are asked to be a witness, the parties will probably want a copy of your chart or notes well before the trial. Where the patient consents to your producing a copy of your chart or notes, you should do so in most cases. Where the patient does not consent or where you refuse to produce a copy of your chart or notes, then a party may ask the court to order you to produce your chart or notes. You need either consent or a court order before you can produce your clinical notes.

You will usually receive a warning of this request (party asking the court, etc.) by an official document called a notice of motion. When you receive a notice of motion, you should call the lawyer involved right away to see exactly what he or she wants. If you agree with the request, you should tell the lawyer that you consent to the court making the order and confirm this in writing. If you disagree with the request, you probably should hire your own lawyer for advice. Just ignoring the notice of motion could result in the court requiring you to pay for the expense of the unnecessary court order.

In any case, where you make copies of your records for the various parties before the trial or hearing, they will rely on this copy. A further copy may be given to the court or other tribunal without any involvement on your part. You should therefore be careful that the copy exactly duplicates the original and both the original records and the copy should be in the same sequence.

Whenever you meet with the lawyer, or go to the court or tribunal, you should take your original records with you. Of course, you should also refresh your memory about the case before you go to the court or tribunal to testify.

Most tribunals hold hearings when they say they will, but trials in a court are often unpredictable.

You can expect that you will sometimes go to the court house and be disappointed to find out the trial has been postponed. That can happen more than once.

In addition, the date and time which appear in most summons is actually the date and time the trial or hearing is expected to start, and not the date and time you are expected to testify. You should find out when to go to court from the lawyer who is asking you to testify. If you are not to be called early in the case, you may want to check with the lawyer from time to time so that you can avoid sitting around the courthouse needlessly.