when opossing lawyer questions witness

Yes, opposing lawyer are permitted to speak to witnesses so long as the witnesses are not parties to the lawsuit who are represented by an attorney. The opposing attorney does not need your consent. In some instances it might even be malpractice to not interview the witnesses.

Full Answer

Do witnesses have to answer the Attorney's questions?

But the witnesses have no obligation to answer the attorneys question, unless they are under oath. If you find my answer is "HELPFUL" and/or the "BEST ANSWER" please mark it as such. I am not your attorney. The information provided is for general...

When to question your first witness in a criminal case?

It’s your first trial and the parties have already given their opening statements. Now, it’s time to question your first witness. Depending upon whether you are the prosecutor/plaintiff’s attorney or the defense attorney, the questions you will be asking your first witness will be on either direct or cross-examination.

Can a lawyer stop a witness from talking to the opposing party?

A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is: (ii) a relative, employee or agent of a client. The lawyer must also reasonably believe that the interests of the witness will not be adversely affected by keeping quiet.

Does the opposing attorney need my consent to interview witnesses?

The opposing attorney does not need your consent. In some instances it might even be malpractice to not interview the witnesses. But the witnesses have no obligation to answer the attorneys question, unless they are under oath.

What is it when an attorney gets to question a witness for the other side?

What is “direct examination”? In “direct examination,” an attorney questions a witness to get the witness's account (“testimony”) of what happened during the event that triggered the trial.

Can a witness refuse to answer questions?

A witness can, at any time, refuse to answer a question by claiming protection under the Fifth Amendment. The person testifying is the defendant in a criminal case: This is an extension of the protection under the Fifth Amendment.

How can a witness be discredited?

So, again, the way to discredit a witness is to bring up prior inconsistent statements that they made. The way to discredit a witness is to call other witness or cross-examine other witnesses and bring up key points about your main witness's testimony and impeach them through over witness statements.

Can an attorney ask leading questions when questioning an opposing party?

When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyer's client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can ask leading questions as on cross-examination.

What to say when you don't want to answer a question?

Good ways to say anything but "No Comment" to questions you really don't want to answer:"I'm sorry but I'm not able to speak to that subject""Thanks for asking but I'm not able to answer that question""I'm sorry but that information is proprietary"

Does a witness have to answer every question?

You Don't Have to Answer Every Deposition Question (And In Some Cases, You Shouldn't) Your attorney has prepped you for your deposition. You're pretty clear on what will happen, who will be present, and what you should do if you are unable to answer a question.

What if witness is not credible?

Credibility is critical to both the prosecution and defense in a criminal case. If witnesses are deemed not credible in their testimony that could derail prosecution efforts to secure a guilty verdict or allow the defense to raise the reasonable doubt necessary to prevent a conviction.

What makes someone an unreliable witness?

For instance, if an eyewitness sees an incident in poor lighting or from a distance, his or her recollections are less likely to reliable. A person's biases can affect the accuracy of his or her memories, and so can stress factors, such as the presence of a gun during an assault or violent crime.

What is an unreliable witness?

Based on their prior experiences and beliefs, they may believe that they remembered something that did not actually happen, or they may incorrectly identify a suspect based on prejudices about race or other factors.

Can you call the opposing party as a witness?

In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions. The Committee amended this Rule to permit leading questions to be used with respect to any hostile witness, not only an adverse party or person identified with such adverse party.

What are the rules regarding leading question?

Leading questions can only be asked with the permission of the court or in some specific events. Normally leading questions results in the witness answer in more of Yes or No pattern. Leading questions as per Sec 141 of Indian Evidence Act means: a question asked in a way that is intended to produce a desired answer.

Why are leading questions not allowed?

When Are Leading Questions Allowed? Because of their potential to lead to misleading testimonial evidence, these types of questions aren't allowed on direct examination, that is, when a party's attorney is questioning their own witnesses.

Can an opposing attorney interview witnesses?

Yes, opposing lawyer are permitted to speak to witnesses so long as the witnesses are not parties to the lawsuit who are represented by an attorney. The opposing attorney does not need your consent. In some instances it might even be malpractice to not interview the witnesses. But the witnesses have no obligation to answer the attorneys question, unless they are under oath...

Do witnesses belong to a party?

Witnesses don't "belong" to a party. Not only is it perfectly proper for the lawyer (or his or her investigator) to talk to witnesses the opposing party intends to call, it's usually something a lawyer has to do in order to competently represent the client.

Can an attorney speak with witnesses?

An Attorney can speak with ANYONE involved in a case EXCEPT someone who themselves happens to be represented by another Attorney. In most circumstances an Attorney would be remiss if he did not attempt to interview ALL the witnesses that were scheduled to testify in the matter at hand and the Attorney's having spoken with your witnesses IS NOT a basis to appeal ...

What is the rule for witnesses who do not have a lawyer?

When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following: – A lawyer shall not state or imply that the lawyer is disinterested.

What is the rule for representing a client?

Rule 4.2 states “ [i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

Can a lawyer talk to his client before a client testifies?

A lawyer can always talk to his own client before the client testifies. There is, of course, not prohibition against a lawyer talking to his client prior to the client testifying. In fact, that is precisely what the lawyer is supposed to do.

Can a lawyer tell a witness to lie under oath?

A lawyer can never tell a witness to lie under oath. As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.

Can a lawyer ask a witness not to talk to the other side?

With some exceptions, a lawyer ask a witness not to talk to the other side. A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is: (ii) a relative, employee or agent of a client.

What happens if an expert witness does not use peer evaluated and approved testing methods?

If the expert witness does not use peer evaluated and approved testing methods, the opposing legal counsel may challenge the veracity and reliability of the process. This may lead to a Daubert challenge that disqualifies the expert within the claim or case so that he or she may not present admissible testimony. With a successful challenge, the expert may become a consultant, but this costs the lawyer and legal team time that is necessary for other tasks. To remain within the case, the expert may need to ensure there is a reason to deviate from the standard testing methods based on the evidence with reliable results based on an

What happens if an expert witness contradicts what he or she said?

If the expert witness provides testimony about a particular matter and then later contradicts what he or she said previously, an objection to his or her knowledge may happen . This may challenge the opposing expert witness’ involvement in the case. Any retraction to facts or testing with evidence could cause a severe impact on the case. The other legal team may pose a challenge against the relevance or reliability of the expert when he or she appears to lack the necessary qualifications to remain a designated expert witness. If the challenge succeeds, the expert may no longer remain on the case as an expert witness.

What is the role of an expert witness?

The expert witness must use factual details, data and information to base his or her opinion with the evidence. The foundation for a conclusion based on the expert’s opinions requires a factual basis. Without the facts involved so intimately, the professional may propose an opinion without any connection to the relevant source material of the subject in the courtroom. Then, any witness could express the same opinion without any educational background or expertise in the subject. The focus of what the expert explains in the courtroom requires a more focused relevance to the facts or an explanation of confusing issues regarding the evidence or scene.

What happens when an expert loses credibility?

The expert may lose credibility when presenting testimony based on certain issues. If the professional does not remain consistent with findings and knowledge, he or she may expose a problem. The testimony must remain unbiased without any misleading details or prejudicial problems within the statements. No part of the testimony should have confusing components for the judge or jury panel. One of the tasks of the expert is to remove confusion, and causing further misunderstandings is a serious issue. The testimony should not become a cause for arguments but provide the courtroom with a clear understanding and knowledge about something that needs clarification.

What happens when a lawyer is called as a witness?

The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing.

What is the difference between an advocate and a witness?

A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

What is the role of advocate and witness?

[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.

When is a tribunal proper objection?

[2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

Is the tribunal likely to be misled?

Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses.

How do opposing lawyers distract their opponents?

One way opposing lawyers distract their opponents by filing incessant motions to frustrate a matter. Some lawyers are easily distracted by allowing every issue raised by an opposing lawyer to become a dispute. While it is essential to react to some motions, learn to ignore harmless ones.

How to handle a difficult opposing lawyer?

Be Proactive. One great way to handle difficult opposing lawyers is to be proactive. If you are always reacting to what the opposing lawyer is throwing your way, you’ll regularly be playing catch up. To be proactive, lawyers must have a plan of action and anticipate the next move of the opposing counsel, just like in a chess game.

Why are lawyers so calm?

Calm lawyers are usually the most efficient because they do not allow their emotions to becloud their sense of reasoning. Nothing upsets an opposing counsel more than a calm and collected lawyer.

What is a difficult opposing counsel?

A difficult opposing counsel is every legal practitioner’s nightmare. Even judges dread the thought of presiding over matters involving a difficult lawyer. Their fears are understandable. Difficult lawyers seem to have a penchant for employing unethical tactics to win a case. According to some lawyers, dealing with a difficult opposing counsel is ...

How to be proactive in a court case?

To be proactive, lawyers must have a plan of action and anticipate the next move of the opposing counsel, just like in a chess game. By preempting the moves of the lawyer on the other side, you will avoid delays caused by your opponent’s delayed actions.

Why are lawyers so aggressive?

The reason many lawyers are uncivil and aggressive comes from the desire to please their clients. There is certainly a popular misconception by the public that lawyers who are difficult and aggressive are the ones who can bring in results.

How to control an errant lawyer?

Follow the Laws, Rules, and Procedure. By following the law and sticking to the rules of procedure, you will be able to control errant opposing lawyers. Knowing the law, rules, and procedure is a good technique in checkmating some of the antics of difficult lawyers. Make use of the laws and rules of procedure to stay ahead ...

Why Do Witnesses Try to Outsmart Opposing Counsel?

First, let’s focus on Tim. Why did he choose to do this? Wouldn’t it have been simpler to answer questions directly, and without obvious contempt for opposing counsel? No, not for Tim; he was so offended the litigation was happening in the first place that his indignation overcame his good judgement, and he lashed out at opposing counsel.

How Can This Behavior Be Fixed?

If you’ve got a witness who might want to outsmart opposing counsel, the most important task will be to uncover the motivation behind his or her testimony.

Conclusion

While there are no silver bullets for preparing challenging witnesses, understanding the goals and fears that lead to these behaviors is the first step to correcting the problem. Listen to your witnesses for possible red flags and try to address their concerns.

What happens when a witness responds to a column 3 question?

On the other hand, when the witness responds with column three answers, the attorney's weapons are neutralized and the witness is in control. Now the attorney is frustrated, not the witness. The tables can really be turned on opposing counsel when the witness adheres to the guidance in the final row in the table above.

What are some examples of witnesses?

For example, they realize opposing counsel might manipulate them somehow; fluster them; trap them with their own words; use their own words to “force” them to agree with something that’s not true, or that they don’t believe;

Can witnesses beat attorneys?

Fact: Witnesses cannot beat attorneys at their own game. If they try they will lose the engagement and probably the case.

Can witnesses survive under adverse questioning?

There's a steep learning curve, but once witnesses get it, they can not only survive, but thrive under adverse questioning and become assets to the overall case. For more ways to improve witness preparation, check out these posts: Witness preparation - don't let your witnesses get trapped by their own words.

How to prepare for a witness test?

Preparation of the witness for examination is as important as the attorney’s preparation for the examination. Review every question and exhibit with the witness. Ask the witness what exhibits she believes would be helpful in explaining her testimony. Inform the witness that after direct examination she will be cross-examined by opposing counsel but that on redirect examination she will have the opportunity to explain the answers she did not have an opportunity to explain during cross-examination. Review the likely points of cross-examination to avoid as much surprise as possible. Tell the witness to show respect for the system and all involved. Instruct the witness to speak clearly, loudly, and to the jury. The witness should speak, dress, and act appropriately. It is important to remember that how a witness testifies is as important as the substance of their testimony. Show the witness the courtroom. If possible, have the witness watch part of a trial to become generally familiar with the process. Review all procedures with the witness. Hopefully, if you follow these suggestions, the witness will be both prepared and comfortable.

How to answer a question in a jury?

Use concise, leading questions that for the most part elicit yes or no responses. Organize your questions so that they build to an important point. The last question of a series of questions should make the point very clear. Stop for a moment to gather your thoughts and to let the jury have an opportunity to appreciate the point and its significance. Then move on to your next point. Keep the witness guessing. Move from point to point in an order that keeps your thought process hidden. If the witness does not know where you are going with your questioning, you are more likely to catch the witness off guard and get the answer you desire.

Why should you avoid leading questions?

First, leading questions are not allowed on direct examination except in limited circumstances such as in the case of an adverse or hostile witness or a very young witness. Second, the use of leading questions will have the negative effect of shifting the jury’s focus from the witness and her answers to you and your questions. Finally, the use of leading questions reduces the credibility of the witness. If you use leading questions on a regular basis, it will be as if you are testifying, not the witness. Even if opposing counsel and the judge allow you to use leading questions, the jury will not appreciate this approach and will no doubt question the credibility of the witness.

Why do we use silence in jury duty?

In reality, when these sounds are used on a regular basis they only serve to distract the jury. Remember, moments of silence between a witness’s answer and your next question are acceptable. In fact, these moments of silence allow the jury to absorb the witness’s testimony and its significance.

What is the purpose of cross examination?

Cross-examination has essentially two purposes. The first and primary purpose of cross-examination is to elicit testimony that supports your case . The second purpose, which is discussed in more detail below, is to attack the credibility of the witness or the witness’s testimony.

Why do you use exhibits in a jury?

Use exhibits during direct examination to prove or emphasize points, explain testimony, and make the examination more interesting. Jurors appreciate the use of exhibits. Be sure not to block the view of the jury when using an exhibit.

How to establish credibility of a witness?

The jury must believe the witness. To establish the credibility of the witness, develop those aspects of her background that show she is honest and qualified. For expert witnesses, establish the witness’ qualifications to show that the witness has the knowledge which forms the basis of her opinion testimony. Cases often boil down to a battle of the experts. When one expert witness is more qualified in the eyes of the jury than the other expert witness, the case often turns on that determination. For fact witnesses, be sure to establish that the witness had the opportunity to know the facts she claims to know. For example, establish that an eyewitness to a motor vehicle collision had the “opportunity” to observe the collision. Establish that the witness’s view was unobstructed and that the witness was in a place at a time that allowed her to view the relevant events.