Why is a witness necessary in a contested commercial claim?
You have been advised by your collection agency to allow them to forward you claim to an attorney for litigation. You have also authorized the attorney to do so on your behalf.
By now you have analyzed the costs and time involved in proving up your case. 99% of the time the case is either settled before going to trial or a default judgment is entered on your behalf against the debtor. However, let’s assume that the debtor decides to retain counsel and contest the case.
In the typical case in which goods or services are sold to the debtor, a representative from the client’s accounting or credit department familiar with the books and records will be required. It is also possible that a sales person or regional representative may suffice as long as they have knowledge of your record keeping system.
In complex manufacturing cases, a knowledgeable manufacturer’s representative will be necessary to appear on behalf of the client if the debtor raises issues concerning warranties, or additional contractual terms (verbal)…thereby necessitating the need for the sales person to be available for rebuttal purposes.
A debtor has a right under our system of jurisprudence, to have the creditor prove their case. Whether that person is the credit manager or accounting personal, they must meet the traditional burdens of establishing and proving their case before shifting the burden to the debtor.
In order to have a valid case, you must prove:
1. You received an order from the debtor.
2. You and the debtor agreed on a price for the merchandise or service to be provided.
3. You delivered the merchandise or provided the service.
4. A demand for payment was made.
5. No payment has been received.
The person who is actually to testify will only be able to state facts known from personal knowledge or upon review of the business records with the knowledge of what he is reviewing. As long as a witness is credible you have now satisfied your burden of proof through the use of a witness.
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