So you get the dreaded call from our office: the tenants are disputing the eviction lawsuit and your appearance at trial is necessary. Beads of sweat spill from your brow as you imagine James Spader drilling you with philosophical theories as William Shatner frolics mindlessly in the background distracting you from the barrage of questions. Put your fears to rest; this isn’t Boston Legal.
Appearing as a witness for an eviction trial should be painless. Use this simple guide to learn how to become an effective, relaxed witness and provide the greatest benefit to your case.
Whether we have filed on your behalf an eviction complaint based upon unpaid rent or an eviction for cause, where the tenants have violated the lease in some way, the landlord has the burden of proof at trial. Therefore, it is our duty to prove, by a preponderance of the evidence, that either there is rent owed or the tenants are in violation of one or more lease provisions. We can fulfill that burden by helping you testify clearly and accurately to only relevant information, and avoiding arguments with the tenants before the judge at all costs.
For a case of unpaid rent, we will need you to provide a written account ledger which we will offer into evidence in order to make the amount past due as clear and definite as possible. The ledger should give a simple chronological accounting of the rent that came due and all payments made, leaving a distinct balance owed. If we do not present a written account ledger to the Court, you should be able to concisely relate the amount of rent due and owing, and the simple calculation used to arrive at that amount. If there are late fees on the account, be prepared to show which section of the lease allows for late fees.
We must also tender to the Court a copy of the 5 day notice, and if you served it, you must be able to relate on what date and how you served it. We may elicit testimony from you regarding what time it was served, who answered the door, and what he/she was wearing. The more you remember and the more accurately you testify, the more credibility we will build for you as a witness. And then, we will ask you whether any payment was made within the 5 days of the notice. This fact is critical to your case because if they made payment in full within the 5 days, your Complaint will be dismissed. We must establish that no payment was made, or only a partial payment was made, within that timeframe to meet our burden of proof.
After you have testified to the amount past due and the facts surrounding the 5 day notice, your tenants will get the opportunity to cross examine you, or ask you questions based on your testimony. During cross examination, we may object to certain questions posed by your tenants, especially if they are not represented by counsel and are unfamiliar with the legal process. After we have objected, do not answer until the judge has ruled on the objection and instructs you whether to answer. Also, during cross examination, you must be careful not to engage in any argument with the tenants, no matter how belligerent they become. Remember, you are the victim; you wear the white hat. Don’t give the judge any reason to reduce your judgment or side with the tenants.
Then, the tenants can discuss any defenses they may have. The burden of proof now shifts to the tenants to prove the defense, so they need to bring documentation and witnesses to have any hope of success. Your tenants may contend that the property is uninhabitable, or that they paid for repairs and withheld the rent to be reimbursed for the cost, or that they made partial payment. These defenses usually do not negate the rent due. However, the effect of these complaints could reduce the award of late fees, attorneys’ fees, or other miscellaneous charges. In a case where the court thinks that the landlord in some way dropped the ball, the court will not allow the landlord to recoup all of his money.
In evictions for unpaid rent, there is truly only one defense: that the tenant made payment in full of the past due amount within the time period of the Landlord’s Notice. If the tenant can show sufficient evidence of such payment, our case will be dismissed.
But if you follow the few, simple recommendations in this guide to trial testimony, we should prevail on your behalf and obtain an order for possession and judgment. Remember, the most important aspect of testifying is to be organized and concise. And relax! It worked for Denny Crane.
By KSN Attorney Jessica Ryan