If you’re considering legal action in the USA to recover an unpaid invoice, you may need to provide a witness at trial.
Most commercial debt cases settle before reaching court. If yours doesn’t, you’ll need to be prepared to provide a witness and potentially find the money for extra costs.
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Why Are Witnesses Used in US Debt Recovery Cases?
Unlike court proceedings in the UK, where a solicitor can often secure judgment without the creditor needing to appear in person, US courts require a live witness to be present at trial.
A witness cannot be substituted with a written affidavit or deposition because written statements cannot be cross-examined by the opposing party.
The additional costs and practical challenges of having a witness are just one of the things to consider before you sue a US client from the UK.
Which Type of Witness Do I Need?
If your case does go to trial, your witness will typically fall into one of two categories:
- A books and records witness is usually someone from your accounts or credit control team who has working knowledge of your financial records and how they are maintained. This person must be able to testify that the documents being submitted as evidence are genuine company records, and confirm that the debtor’s account is in arrears.
- A transaction witness is someone with direct knowledge of the deal. This might be the sales representative, manager, or director who dealt with the debtor personally and can testify to the terms and circumstances of the transaction.
If the facts of the case are not in dispute, a books and records witness will generally suffice. If the debtor is contesting any aspect of the transaction, you’ll need a witness with direct knowledge of the deal.
In some cases, one person can fulfil both roles. They must have sufficient knowledge of both the transaction itself and your company’s accounting records and systems.
If your transaction witness doesn’t have that broader knowledge, both witnesses will need to appear in court separately, adding to your costs and logistical considerations.
Can a Witness Testify Remotely?
Since the COVID-19 pandemic, remote testimony via video link has become more widely accepted in US courts, and some judges will permit it in civil proceedings. It remains at the discretion of the court. In contested cases where witness credibility is central to the outcome, in-person testimony is generally preferred and carries more weight.
If remote testimony is something you’re hoping to rely on, confirm it. The rules vary by state and by court.
How Far in Advance Do You Need to Arrange a Witness?
Your attorney will need to know who your witness will be early in the process. Witness details may need to be disclosed to the opposing party during pre-trial proceedings.
Additionally, US civil cases can move through the system faster than many international creditors expect, and witness availability needs to be confirmed well in advance of the trial date.
Depending on the case, your witness may also be asked to provide a deposition. This is a formal pre-trial statement given under oath, and it requires additional preparation and scheduling.
What If Your Key Witness Leaves the Company Before Trial?
If your key witness leaves for any reason, you’ll need to identify a replacement who has sufficient knowledge of the case, your accounting records, or the original transaction.
Depending on how much time has passed and how well the case has been documented, finding a suitable replacement may be challenging. You can protect yourself by ensuring you have thorough documentation.
How Should You Prepare Your Witness for Court?
A witness who is unfamiliar with US court procedures, or who hasn’t been properly prepared for cross-examination, can damage an otherwise strong case.
For UK witnesses in particular, it’s worth being aware that US courtroom procedure and etiquette differs from the UK in several respects.
Your US attorney should conduct witness preparation sessions in advance of the trial. These typically cover:
- What to expect in a US courtroom
- How to present documents clearly and confidently
- How to handle cross-examination from the opposing attorney
The goal is to ensure they can present what they know clearly, accurately, and without being thrown off by questioning.
What Happens If Your Witness Fails to Appear?
If your witness fails to appear at trial without adequate explanation or prior arrangement, the consequences can be severe.
The judge may grant a continuance, effectively postponing the trial. This is the best case scenario, but it adds cost and delays the outcome.
At worst, your case could be dismissed or judgment entered in favour of the debtor.
If witness availability is genuinely uncertain, this is a strong reason to pursue settlement before the case reaches trial rather than risk the consequences of a no-show on the day.
What Documentation Should Your Witness Bring to Court?
Your attorney will manage the formal submission of evidence. But your witness needs to be thoroughly familiar with key documents and able to refer to them clearly and confidently under questioning.
Your attorney will advise on the specific documents required for your case, but as a general principle, the more organised and complete your documentation, the more confident and credible your witness will appear.
Relevant documentation typically includes:
- The original contract or purchase order
- Invoices issued to the debtor
- Records of delivery or service completion
- Correspondence relating to payment requests and any disputes
- Accounting records showing the outstanding balance.
The books and records witness should be prepared to speak to how these documents were created, stored, and retrieved.
Safe Collections Can Support Your US Debt Collection Claim
Safe Collections works with experienced US-based agents who specialise in recovering commercial debts for international creditors.
Where legal action can be avoided entirely through professional collection activity, we’ll pursue that route first, saving you the cost and complexity of going to court.
And if litigation does become necessary, we can help you understand exactly what will be required before you commit.
Contact us today to discuss your US debt recovery claim. With our “no collection, no commission” promise, there’s nothing to lose in making that first call.
