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Would they have to cross-examine themselves, and if so, how?

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2 Answers 2

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If the attorney testifies, they can "cross-examine" themselves, and they would usually do so by simply giving a narrative presentation about whatever facts are necessary.

In the , however, this typically would not be allowed to happen.

If the attorney's testimony were necessary, he would probably be prohibited from acting as an attorney in the case under Rule 3.7. This is usually apparent early on, so the court would typically disqualify the attorney long before trial.

Even if need for the lawyer's testimony became clear later on, the opposing party would typically be required to disclose that fact in advance of trial under Rule 26(a)(3). The court would probably prohibit the party from calling the lawyer if they tried to keep these plans secret until the trial was already underway.

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As a general rule, appearing as both a representative and a witness is strongly discouraged by the courts (see e.g. Gunn & Naghshineh v The Charity Commission for England and Wales CA/2014/0001 & CA/2014/0002).

There are various reasons for this. A primary one is that it can place the lawyer in a situation where they have a conflict of interests. On the one hand, as a representative they have a duty to act in the best interest of their client, and to protect client confidentiality. On the other hand, as a witness they would have a duty to the court to give accurate testimony and answer questions. It's easy to see how these competing duties can conflict.

Another reason is that witnesses can be excluded from hearings until they give their evidence while obviously a representative cannot.

The old (2011) SRA's Code of Conduct Indicative Behaviour 5.6 had this to say:

not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice

With that said, it isn't completely forbidden. But to be permitted you would have to convince the court that it will not cause any problems (see e.g. Afia v Mellor [2013] EW Misc 23 (CC) and Pineport Ltd v Grangeglen Ltd [2016] EWHC 1318 (Ch)).

I've personally been involved in a case where permission from the court was requested to have a representative act as a witness. One of the factors that the court took into account when they gave permission was that neither party had called the representative to testify, which meant that the written witness statement stood as examination in chief, and there wasn't a possibility of cross-examination. The court may have been more reluctant to give permission if the representative was required to give testimony in person.

I wasn't able to find any specific citations for such a situation, but non-authoritative literature suggests that where a litigant in person is acting as a witness on the stand, they can either question themselves or they can speak in a narrative form.

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    An important point that is not mentioned in either answer: In a trial, you cannot just call a surprise witness whenever you feel like it (as is sometimes shown in TV and movies). If you want to call the other side's attorney (or anyone else), it will be briefed in advance and the judge will decide what to do at that time.
    – Kevin
    Commented Mar 11 at 1:28

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