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I have a witness to an accident but they live out of state. Is there a way to legally get a statement that the judge will allow?

San Jose, CA |

I'm taking someone to small claims court for a car accident because their insurance company is only paying half of the estimate. The other person said that both of us was moving and that is not true.

Attorney Answers 7


  1. Can you get the person to do a written statement of what happened so you can bring that to court. She should have the statement witnessed and notarized.


  2. Bring your witness to court with you to testify.

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  3. It's unclear what jurisdiction you are in. If you are in small claims, a signed and notarized declaration may do. If you are in unlimited jurisdiction, you really should have an attorney representing you. However, if for whatever reason that is not an option, you can apply for an out of state commission to take their deposition.

    I'm not sure what the procedure is for limited jurisdiction in San Jose so ask the Court clerk. My assumption is a declaration may do.


  4. Ask the witness to come with you.

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  5. I see the answers suggesting you bring the witness to court with you, and that is the ideal answer. Given the amount in controversy, and given that you are in small claims court, that might not be financially practical.

    So...ask the court if you can make arrangements to have the witness testify by videoconference or telephone. With the ease of programs like Skype or google+, fast and easy to use internet videoconference is available from most any computer, and even some smart phones. Videoconference would be my first choice, telephone second. And if neither were available, obtaining a signed, notarized affidavit detailing the witness' testimony might carry the day in a small claims courtroom, but it is a bit more of a gamble.

    Regardless of what path you choose, try to ask the court -- or the court staff -- what may be allowed.

    This answer is given for informational purposes only. Local law and authorities have not been consulted. No attorney/client relationship is created by posting this answer, and Dev Sethi is not licensed to practice law in New Mexico.


  6. Best for the witness to come with you. You would need to look at the small claims court rules to see if the court accepts written statements. The rules are pretty straightforward, you just need to check.


  7. If a statement is used it must be signed below the magic language. "I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. This declaration was executed on Feb. __, 2013, at _________(city), ________(state).

    A notarized signature after that would be helpful too.

    The declaration should explain where the witness was positioned at the time (so it is clear they could observe what happened). Should explain exactly what thye saw each car doing, what part of each car contacted the other, what happened after the contact, speeds if known or estimated, where in the pkg lot the actual point of impact occurred, and if they heard anyone majke a statement after the crash, who it was and what they said.

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