No Witness

If the attorney does not call a witness but instead attempts to introduce an affidavit – say “your honor – a sworn statement is still hearsay and I object to the admission of a sworn statement in lieu of testimony from a live witness.”

Cross Examination of Witness, some questions assume Discovery

I - Questions as to the Person testifying

1. Please state your name.

2. What company do you work for?

3. How long have you worked for the company?

4. What is your current position?

5. How long have you worked in your current position?

II - Questions as to the Person’s Familiarity with Account

1. And in this position you are personally familiar with all the accounts.

2. Are you familiar with the account in question today?

3. How are you familiar with this account?

4. Did you arrive at the amount claimed by what the account balance shows you on a computer screen or actually calculate it yourself?

5. Did you bring with you all the records of this account in order to be able to refer to them or answer questions?

III - Questions as to the Debt Liability

1. What was the date this account was opened?

2. How was the account opened?
3. Was a Loan Application signed?

4. Do you have that with you?

5. May I look at it please? (Check for your client’s signature)

IV - Questions about the Terms of Agreement

1. Were Terms of Agreement also provided?

2. May I have a look at them please?

3. Were these the Terms of the Loan Agreement as of the date the Loan Application was signed?

4. How do you know?

5. What was the original interest rate?

6. This is the annual interest rate?

7. So for each monthly period, if there is a balance, the interest or finance charge is calculated using the annual interest rate simply divided by 12, am I right?

8. Can you read for me in the Terms of Agreement where this is explained to be easily understood by card holders?

9. And is the finance charge calculated on the principal balance, the portion of actual charges, or on the full balance, meaning actual charges plus previous finance charges.

10. So the finance charge is accumulating its own finance charge. In other words, interest is being charged on interest in addition to the principal balance.

11. Can you read for me in the Terms of Agreement where this is explained to be easily understood by card holders?

12. Under what conditions would the interest rate be raised? Please read from the document itself where this is explained to be easily understood by card holders?

13. Besides interest or finance charge, are there other fees that can be assessed under certain circumstances?

14. Can you read for me in the Terms of Agreement where this is explained to be easily understood by card holders?

III - Questions as to the Amount

1. Do you have with you a full accounting from the zero balance at the time the account was opened?

2. Did there come a time when the interest rate changed?

3. When was that?

4. Were payments at that time being paid regularly and on a timely basis?

5. So, what was the reason for the change?

6. Did there come another time when the interest rate changed?

7. When was that?

8. Were payments at that time being paid regularly and on a timely basis?

9. So, what was the reason for the change?

Repeat 6-9 as needed

10. When was the last payment that was received by the credit card company?

11. What happened then?

12. Has the debt since been charged off?

13. What does that mean?

14. What was the date and the balance due at the time the debt was charged off?

15. What charges have been added since that date and how were they calculated?

IV - Analysis Questions

1. You testified to the amount that XX Bank claims that my client owes. Did you rely on a computer program for that amount or did you calculate that amount yourself?

2. Have you completed a detailed ledger accounting of this account that starts with a zero balance?

3. Why not?

4. Please state for the court how much of what you claim that my client owes represents finance charges and bank fees.

5. Please state for the court how much of what you claim that my client owes represents goods or services actually purchased by me.

6. Did X Bank raise the interest rate on my account at any time?

7. Can you state for the court the dates that it did so?

8. My records reflect that X Bank raised my client’s rate from 14.5% to 24.99% (example) and then to 29.99%. Do you have any evidence that refutes that?

9. Can you tell the court the dates and times that my client called X Bank to request assistance after X Bank raised his interest rate?

10. (Ask for the bailiff to hand the witness a copy of the statement that came with the Complaint/Warrant in Debt – you should take three copies with you.) Please identify for the court what this document is.

11. Do you recognize this statement to be a statement pertaining to the account in question in this lawsuit?

12. On the statement, it says “Daily Periodic Rate” can you explain what that means?

13. Is it true that X Bank charges interest daily on the outstanding balance of my client’s account? (if the witness says no then ask “why would you reference a daily rate then?”)

14. Can you explain what the term Annual Percentage Rate means?

15. Can you explain to the court the concept of interest compounding?

16. Which has a higher yield 29.99% compounded annually or 29.99% compounded daily?

17. It seems to me that if you apply interest on a daily basis, the quoted annual percentage rate is misleading because daily compounding yields a much higher effective rate, can you explain why my client was quoted an annual percentage rate without the benefit of an effective rate quote?

18. Can you state for the court the effective interest rate including all interest and bank fees for the statement I handed you?

19. My calculation shows that the effective rate for this statement was 57.01%. Do you have any evidence to refute that calculation?

20. Can you provide evidence to this court that I was notified at the time I applied for this account that you would be able to charge me 57% in total finance charges? (If he/she says they don’t know, then say: I could not locate any such disclosure in my records.)

21. Can you provide evidence to this court that my client agreed to be charged 57% interest? (If he/she says they don’t know, then say: I could not find anywhere in my records where I had agreed to that rate.)

If the witness says that they do not understand a question then simply say:
“Let me repeat the question.” and then repeat the question.

If the witness says that they do not understand a question the second time then say:
“I am using simple banking and finance terms in my questions, is it your testimony that you do not understand simple banking and finance terms?”

“OK, let me repeat the question and you stop me when I come to a term you do not understand.”

If the witness still acts like he/she cannot understand the question then say:
“You honor, let the record reflect that I object to the Plaintiff’s only witness refusing to answer questions on the pretense that he/she does not understand when I am using common terms used in the banking industry.”

Alternative Analysis

1. What is the total amount claimed?

2. What was the date of the last payment by the Defendant?

3. So it has been approximately ??.? years since the last payment.

4. What was the amount due at the time of the last payment?

5. So can you please subtract the amount due at the of the last payment from the amount claimed today. (Here’s a calculator)

6. So it is fair to say that the cost of borrowing the amount due at the time of the last payment from then until now has been $123.45.

7. And if we divide this number but the number of years it has been since the Defendant’s last payment, we should get the effective annual interest rate. Can you divide that for the Court on the calculator?

8. And what number have you come up with?