May 06, 2020 Feature

A Fool for a Witness: The Testifying Lawyer

Whether you’re thinking of testifying or your opponent is going to do so, proceed with caution.

Dan Stephenson

Download a printable PDF of this article.

I once had the pleasure of cross-examining my opposing counsel. I say “pleasure” because it was an unusual experience and my client won the case. It happened unexpectedly during a one-day arbitration, virtually in the heat of the moment. Little planning went into it. On reflection, the circumstance of a trial lawyer taking the witness stand presents fascinating issues of ethics, decorum, procedure, and strategy. The issues bear sorting.

“A lawyer who represents himself has a fool for a client,” according to an old adage. Yet, there is no law or rule against an attorney representing himself, and an experienced trial lawyer will encounter the lawyer-litigant many times over the years.

When it comes to a trial lawyer giving testimony, no pithy adage exists, but we all know you can’t do it, right? Here, there really is a “rule,” known as the “advocate-witness” rule. Many believe it to be so unassailable as to constitute a black-and-white prohibition. Yet, in practice, it is fairly narrow and full of exceptions. Lawyers take the witness stand all the time—sometimes even trial lawyers do it.

Illustration by Doug Thompson

Illustration by Doug Thompson

Premium Content For:
  • Litigation Section
Join - Now