A Fool for a Witness: The Testifying Lawyer

• Author: Dan stephenson
• Pages: 43-47

43VOL 46 | NO 3 | SPRI NG 2020

A Fool for a Witness

The Testifying Lawyer

DAN STEPHENSON

The author is of counsel at K&L Gates.

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,” ac-

cording to an old adage. Yet, there is no law or rule against an at-

torney 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.

What are the dimensions of the advocate-witness rule? What

are the reasons behind it? What does lawyer testimony look like

in real life?

The advocate-witness rule is a “chameleon,” according to one

commentator. Sometimes it looks like an ethics rule, but it isn’t

easy to pinpoint why testimony by a trial lawyer should be un-

ethical. Sometimes the rule looks like a matter of etiquette or

proper form, like the proscription against walking across your

opponent’s putting line in golf. Sometimes it looks like an evi-

dentiary issue, designed to prevent “jury confusion.” Finally, the

rule occasionally looks like a “bon mot,” a piece of commonsense

wisdom imposed for the sake of the client.

I do not intend to debate whether the advocate-witness rule is

right or wrong, but rather to lay it out and observe how it works

in real life and, I hope, offer some guidance to any practitioner

who might face this extraordinary situation. The bottom line is

this: Whether you’re thinking about testifying, or your opponent

says she wants to testify, proceed with caution.

The trial of Sir Thomas More in 1535 is one of the most famous

trials in history. More had been the Lord Chancellor of England

and one of its heroes, but he crossed King Henry VIII and was

put on trial for treason. During the trial, one of the prosecutors,

Solicitor-General Richard Rich, took the stand to testify about

treasonous statements More had supposedly made to him, which

More denied. In Lord John Campbell’s 1856 retelling,

[t]he judges were in dismay—the Attorney-General stood

aghast—when Mr. Solicitor, to his eternal disgrace, and to the

eternal disgrace of the Court who permitted such an outrage

on decency, left the bar, and presented himself as a witness for

the Crown.