by Curtis Wilson, Esq.
McCalla Raymer Leibert Pierce, LLC 
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY, OR, TX, WA)

If you watch any legal drama or crime show on television, one trend you notice is that everyone is focused on finding the best witness to prove their case. Having the correct witness with the most knowledge of the event or situation is the key to any successful litigation. When it comes to litigation involving corporations, the same is true. However, the role of a corporate witness has additional requirements and requires a different knowledge base than a witness that testifies from their own knowledge of the facts.  

Preparation and Document Collection
A corporate witness’s role does not begin in the courtroom, but rather should begin well prior to trial. A corporate witness is often an employee of the corporation with specialized access to the records of the corporation, and with enhanced knowledge of their procedures. For this reason, it is recommended that the witness be assigned, and their preparation begin as early in the trial preparation period as possible. By having additional time to review the documents the witness can be more familiar with the facts required for testimony. Moreover, from a credibility standpoint, it is always preferred that the witness be involved with the provision of the evidence. At trial, it is very common for an opposing counsel to challenge a witness’s familiarity with the evidence and try to argue that the witness has never reviewed the evidence prior to trial. For a witness to be able to testify that they not only have intimate knowledge of the contents of the evidence, but additionally were the source of the evidence, reduces the opportunity for evidentiary challenges and increases the witness credibility. 

Authentication of Evidence
Once trial begins, the first and perhaps most important role of a corporate witness is to authenticate documentary evidence so it may be admitted into the evidentiary record. Typically, any record or piece of information cannot be admitted into evidence at trial unless it is submitted by the person who personally created it and is considered hearsay. Hearsay is defined as information or evidence received from another person which cannot be substantiated. In short, until the documents are submitted by the correct person, they are considered to be of no evidentiary value as the integrity of the information is in question. With the complexity and size of many corporations, it would be impossible to bring in the actual employee or person who created each individual record or piece of information to be relied upon. It is for this reason that there is an exception to the hearsay rule, the business records exception. 

The business records exception allows a single corporate representative to authenticate any records of the corporation for submission into evidence, if the witness and the records meet certain criteria. The witness must be able to testify they have personal knowledge of the policies and procedures of the corporation utilized in making the records. The records themselves must be made in the regular course of business, and it must be regular business of the corporation to make these records. Further, the witness must be able to state the records were made by someone with personal knowledge of making the records and the records were made at or near the time of the occurrence. If the court makes a finding the witness has sufficient personal knowledge of the business practices of the corporation, then the witness can testify the records meet the above described criteria, and they will be accepted into the record as authenticated.

A qualified witness requires extensive and varied training to demonstrate sufficient personal knowledge of the business operations of a corporation. The witness should be able to testify about the names of the departments which keep the records and any record keeping technology or systems used, which improves the credibility of the witness with the court, making it easier to get evidence into the record over objection. Getting the evidence into the record is often harder than getting the factual testimony established once the evidence has been authenticated and received by the court. Despite the plethora of case law which attempts to describe or define sufficient personal knowledge as a corporate witness, courts and judges vary in what they expect, and having as much training as possible is absolutely necessary in case you face a difficult judiciary. 

Fact Testimony 
Once the evidence has been accepted by the court and is part of the evidentiary record, the witness’s job becomes one of establishing the factual record. Often in corporate and default litigation, the facts are integrated into business records which are technical or require specific knowledge to interpret. For example, evidence like payment histories, correspondence records, and other internal records often include proprietary codes or abbreviations which require specific knowledge and testimony. A witness may be required to testify about anything from dates of events, payments discrepancies, mailing of notices, as well as many other subjects. Again, the training of the witness is of the utmost importance as the court gives weight to the evidence based up on the credibility of the witness and the quality of their testimony. 

A corporate witness not only has to be subject to a direct examination to get their parties’ facts into the record, but also subject to cross examination. Cross examination is likely the most difficult part of the witness’s role in establishing a record. Generally, most cross examination is targeted at confusing the witness or getting the witness to make a mistake in their testimony which injures their credibility or the case in general. Often, the opposing counsel will ask the same question several different ways to try and create inconsistency in an answer or will twist the witness’s previous testimony to their needs. Again, a witness should have extensive training to understand how to avoid these traps, as the assistance their counsel can provide during cross-examination is limited. 

Recent Updates Affecting Corporate Witnesses
The role of the corporate witness has changed somewhat in recent months. With the COVID-19 pandemic affecting every aspect of life for most people around the world, it has also greatly affected how corporate witnesses can perform their job. One of the most common changes to a corporate witness’s job is that their appearances have been primarily remote by use of video technology. Prior to the current pandemic, a witness was required to be in-person at trial except for very rare extenuating circumstances. Appearance through video technology has changed the face of trial and created new challenges for the court, witnesses, and their counsel. One of the most difficult aspects of witness testimony while working remotely stems from inabilities to organize evidence. When appearing in person for trial, it is very easy for the counsel to hand the witness the required evidence in the correct order, as needed. Working remotely presents a challenge that each party must have pre-organized evidence books to attempt to alleviate difficulties when presenting evidence. Given that some trials rely on numerous exhibits for corporate witnesses, even into the hundreds of documents, providing an organizational scheme that keeps the judge, counsel and witnesses on the same page has been a challenge. Further, the swearing in of the witness to testify requires changes to procedure. A witness must be sworn in by the judge as a prerequisite of their testimony. However, working remotely, the courts have been requiring a notary to be present with the witness to swear them in, as a video swearing in has been considered insufficient. The logistics of having a notary present while a witness is both working from home and attempting to socially distance has provided some issues. It is hoped that as we slowly work through this new normal affecting the world, better and more consistent procedures will be identified for remote trial appearances. 

In addition to the COVID pandemic, there are continuous changes to the case law as it defines the role and responsibilities of a corporate witness. For example, recently in Florida, the Supreme Court issued a groundbreaking case , which greatly reduces the burden of responsibility and testimony of a corporate witness to qualify to testify. Previously, a corporate witness would have to testify they had personal knowledge of the policies and procedures of the corporation, and further was subject to strict testimonial scrutiny wherein they would have to prove that qualification with background facts, information and further descriptions of their training and role in the corporation. The Florida Supreme Court has shifted that burden, to the benefit of the witness. The new standard per the Florida Supreme Court states that if the witness testifies, they have personal knowledge to qualify as a valid corporate witness, they do not have any responsibility to provide backing evidence of their qualifications. Rather, it is the burden of the opposing party to prove they lack proper qualifications. Further, this case strengthens the presumption that corporate documents are authentic and authorized. This shift, per the Supreme Court’s findings, is intended to force parties to argue the substantive facts of the case, rather than get bogged down in the procedural arguments regarding qualifications of witnesses and authenticity of evidence. This case will greatly reduce the amount of work to qualify the corporate representative as an appropriate witness, and to have the evidence authenticated, which should shorten trials and lead to outcomes based on the merits of the case, not the bureaucracy of procedure.  

^{1 Jackson v. Household Finance Corp. III, Fl. SC18-357 (Fla. 2020)}

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Spring 2020 USFN Report