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A Lawyer Representing a Non-Party Witness IS A POTTED PLANT


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2/7/2014
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Here's what I mean.

A nonparty witness is someone who is not part of the litigation process. He is not someone who has brought the lawsuit nor is he someone who is being sued. Instead this may be a person who witnessed something and has key information about one side or the other.

A nonparty witness deposition is an opportunity for both sides to be able to question this witness in a formal setting in an attorney's office and be able to preserve this witness's testimony for trial.

A deposition is nothing more than a question and answer session where the witness is giving pretrial testimony under oath.

In many cases when a nonparty witness is being asked to give pretrial testimony, he will often hire an attorney to represent him at this question and answer session.

In years past, such an attorney would make it difficult for the lawyer questioning the witness and continually object and argue about the types of questions that the attorney was asking as well as whether or not his witness should be answering those questions.

There has been recent case law in New York that looked at the function of a lawyer who represents a witness who is not part of the litigation.

While everyone has legal rights and certainly the right to have an attorney present when they are questioned by other lawyers, courts in New York have determined that a lawyer who comes into a deposition, which is again, a pretrial question and answer session typically done in an attorney's office, that the lawyer has absolutely no function whatsoever. He cannot tell the witness not to answer questions. He cannot direct the witness not to answer. He cannot raise objections to the questions.

In fact, there is one judicial opinion that basically says an attorney who represents a nonparty witness can only sit there and observe. He cannot interrupt. He cannot make objections to and cannot interfere with the progress of this pretrial testimony.

This is a dramatic change from the way things used to be and the fighting that would go on between the attorneys in a nonparty witness deposition.



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