[WSBARP] Litigation Help and Reality Check

[NC]

I do not know if this is relevant but may be a consideration:
RPC 3.7
 LAWYER AS WITNESS
 (a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
 (1) the testimony relates to an uncontested issue;
 (2) the testimony relates to the nature and value of legal services
rendered in the case;
 (3) disqualification of the lawyer would work substantial hardship on the
client; or
 (4) the lawyer has been called by the opposing party and the court rules
that the lawyer may continue to act
as an advocate.
 (b) A lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called
as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
[Originally effective September 1, 1985; amended effective September 1,
2006.]
 Comment
 [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.
Advocate-Witness Rule
 [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.


On Wed, Jul 11, 2018 at 3:20 PM, Paul Neumiller <pneumiller at hotmail.com>
wrote:

> Hey Listserv, this is slightly off-topic but I would appreciate a little
> guidance regarding litigation.  In a civil case, I have filed a motion for
> a hearing.  Opposing attorney DID NOT file a formal Response but rather
> filed a Declaration of Attorney in Response [to my motion].  Is this
> proper?  It seems that opposing attorney needed to file a Response opposing
> my motion (even if only a single page) and then file the Declaration in
> support of the Response.  Should I attempt to bounce the Declaration at the
> hearing because it is improper and doesn't support anything or is this one
> of those things where the judge will probably allow it anyway and the judge
> would have already read the Declaration anyway.  BTW, the relief sought is
> discretionary so the judge could rule against me even if there is no formal
> opposition.  Any thoughts?  Attempt to bounce the Declaration of Attorney
> or let it slide and argue the merits?  Thanks for your input.
>
>
>
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