Lay Witnesses Save the Day–At Trial

The recent liability trial of DaSilva v. Dona et al, demonstrated the ultimate credibility contest – a classic “she-said/she-said.” The Jury was charged with the sole issue of deciding the truth about who was driving the car in a single vehicle accident.

Our client initially said that she was in the driver’s seat the night of the accident, in order to protect her friend, the defendant, from getting into trouble for driving without a license. She was also scared at the time. This lie was a difficult hurdle to overcome, but ultimately, the jury decided in our client’s favour – that it was, in fact, the defendant who was driving the car that night.

In this case, the “lay witnesses” made all the difference. Lay witnesses typically have no interest in the outcome of the lawsuit and they are generally impartial. This makes them more believable. As well, having a lay witness give evidence can often be more convincing than expert opinion evidence, as their testimony is not only easier to understand than an expert’s explanation of the same issue, but that person can speak to daily observations versus a one-time assessment.

One of the witnesses in DaSilva v. Dona et al, was an eye witness who had sustained a brain injury and therefore had no recollection of the accident itself. We had a difficult time locating him, but our efforts paid off, when he remembered that the defendant had been driving just prior to the accident occurring. The other crucial witness, who was also difficult to find, was the defendant’s ex-boyfriend. These lay witnesses were not without their own credibility problems, but their evidence was necessary for the win, as both witnesses supplemented the credibility of our client.

It is imperative in any lawsuit that lay witnesses be located and interviewed thoroughly, well before trial. The lay witnesses in DaSilva v. Dona highlight the importance of obtaining lay witnesses at an early stage in the proceeding. Statements from lay witnesses can be very persuasive for settlement purposes, not just at trial.

For more information on this case or about witnesses or trials and how Howie, Sacks & Henry LLP can help you, please contact Melissa Miller 416-847-1063 or

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