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Review the Plaintiff's Declaration before your debt trial

In a debt trial, the Plaintiff can present a written declaration of a witness at trial instead of having the person testify in person. You can review the declaration before your trial and decide if you want to subpoena (ask the court to order) the witness to come to the trial so you can ask them questions.

The plaintiff can use a written declaration from a witness

If the case is for $35,000 or less, either party can use a witness' written declaration to present their case instead of having the witness testify in person (live testimony).

In debt collection cases, the plaintiff often uses a declaration of a custodian of records for the creditor to introduce account statements and other business records to prove their case.

Often, there are no "live" witnesses only the written declarations.  In this case, all evidence of the plaintiff’s case will be in the declaration and attachments.

You will get the declaration in advance of the trial

The plaintiff must serve you with this declaration at least 30 days prior to trial.

Review the declaration carefully. Evaluate whether the evidence establishes the plaintiff’s case, and whether there are any aspects of the evidence that you would want to question the witness about.

You can ask a judge to exclude a Declaration that doesn't meet legal requirements. A judge can exclude a declaration (not let it be used in the trial) if it is missing required information or didn't follow rules for service. The declaration must have:

  • A current address for the witness that is within 150 miles of the place of trial
  • A  location where you can serve the witness 20 days before trial

The Plaintiff must serve the Declaration at least 30 days before trial. 

 

Decide if you want to question the witness

If you need any information from the witness that is not in the Declaration, you will need to get information from them, usually by having them testify at the trial. 

The witness will not appear at the trial unless you subpoena the witness, or ask the court to order the witness to appear at trial.

  • Reasons you might subpoena the witness
    1. The witness also has evidence that would help you, but is not in the declaration
    2. You may be able to question the witness’ credibility through cross-examination
       

    In these cases, you can subpoena the witness to ensure that the plaintiff brings a live witness for you to question at trial.

  • Reasons you might NOT subpoena the witness
    1. The declaration didn't follow all of the rules (see above) and can be excluded from trial
    2. Something in the declaration is actually helpful to your defense, so you want to have it submitted at trial as-is.

Subpoenaing a witness involves completing court forms and serving them by a deadline.

Learn how to subpoena a witness

 

Go back to an overview of how prepare for your trial

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