Tales from the Trenches Episode #1—Separation of Witnesses


Experienced testifiers will often have more experience in a courtroom than the attorney(s) with whom they are working. And even some experienced attorneys do not always pay attention to the rules. Some years ago, I found myself in a situation that might have resulted in my being excluded from testifying because the attorney was not alert enough to perceive the “danger zone.”

I was testifying in a divorce case and was asked by the attorney to show up at lunch time. We would have lunch, and I would testify immediately after lunch. When I showed up, the attorney was in a conference room and had ordered lunch in. He said he wanted to discuss with me the testimony of the opposing expert who had testified earlier in the day. I said, “Wait a minute. Is there a separation of witnesses in this case?” He said yes, and I said then I could not discuss the opposing expert’s testimony in the case before I testified. He wanted to argue with me that it was no big deal, but I said that it is a big deal, and I did not want to discuss it with him.

After the lunch break, I was called to the stand, and the attorney for the other side asked the judge whether he could ask me a preliminary question. His question was: “Mr. Alerding, did you and Mr. Smith (counsel for my client) discuss the testimony of Ms. Jones (expert for the opposing side) during the lunch break?”  Fortunately, I had stopped any conversation regarding the Jones testimony, or I most certainly would not have been allowed to testify.

Takeaway: While you do not have to have a law degree to testify as a financial expert, you should have a least some knowledge of the rules that apply to testimony of an expert witness. The rule on separation of witnesses is a basic rule, but, as a testifier, you might not know about that rule without a lot of testifying experience. I do not recall seeing a webinar or some form of training on the rules of the court. I might see whether I can do something about that.

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