Being Called as A Witness

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Most people think that being a witness at a trial or hearing is not a pleasant experience. Lawyers ask tough questions. Being on the stand is uncomfortable. Lawyers are usually asking the questions, not answering them.

Sometimes lawyers have to take the stand and learn what it is like to answer questions in a courtroom. Another lawyer in town, Robert Heath, recently retained me as an expert witness in series of consumer protection cases. Testifying as a fee expert is different than testifying as a fact a witness in court. Because of the nature of their testimony, experts are well prepared and have plenty of time to prepare. Preparation can help reduce the amount of stress on the stand. It does not completely cut the stress, and for a person not in the legal field, the stress can be high.

While preparing for the fee hearing, I remembered a time when my law partner Chris Klotz called me to the stand. We were representing a client charged as accessory after the fact to a murder that occurred in Florida. However, the charges were in Mississippi because that is where the state found the evidence.

There was an issue about whether the immunity the State Attorney in Florida gave our client would apply in Mississippi. Our client hired me during the investigation in Florida and the state gave him immunity for his testimony. A grand jury in Mississippi indicted my client as an accessory for the same facts which Florida gave him immunity. I am not admitted to the Mississippi Bar, but Chris is, so our client hired him for the Mississippi case. I got a limited admittance, called pro hac vice, so that I could also represent him in Mississippi.

We filed a motion to dismiss the case claiming that our client was immune from prosecution due to the agreement with the state of Florida. We prepared for the hearing and went to the courthouse in Jackson County Mississippi. We had fully briefed the motion and did not expect to call any witnesses. Our judge was a no nonsense judge who did not put up with any shenanigans in her courtroom. We knew to be prepared in her court.

I knew no one in the courthouse except for my client and my co-counsel. The procedures there were unfamiliar to me. During the hearing, the the state raised some arguments that made it clear that we needed testimony about the agreement. Chris looked at me and said “I’m going to have to put you on the stand.” Because my client has the right to remain silent, we did not want to put him on the stand. I was the only other witness in that courtroom to the agreement. We did not want to continue the case because it was an issue that our client needed us to put to rest.

I was surprised. I had not expected to testify. While I had a general idea of the questions Chris would ask, I did not know specifics. Sometimes shooting from the hip can be fun, other times it can be terrifying. Because I was confident in our case, I was not terrified, but it was not exactly fun. My client’s life rested on this testimony, and I was unnerved.

I took the stand and answered both Chris’s and the prosecuting attorney’s questions. They did not turn out to be as difficult as I had made them out to be in my head, and I did pretty well. We were able to get the charges dismissed. Because we were prepared for the motion, and I knew the facts to support it, I was not completely unprepared. But it felt good to be able to help our client.

It is probably good for a lawyer to be on the stand every once in a while. Lawyers should know what it is like on the stand. Lawyers should appreciate the stress, so they can treat witnesses with the appropriate level of scrutiny or even empathy depending on what the case requires.
Eric Stevenson – 2015

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