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.
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