Estate Law Questions? Ask an Estate Lawyer.
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Called as a witness as to what?
Our first lawyer, who is now a judge, prepared a will that is being contested based on competency and undue influence. I am hoping that my first lawyer can testify to the competency of the person he prepared the will for.
He can testify as to that, as could the people who were his staff at the time. Being a judge doesn't prevent you from being called as a fact witness in a case.
Can an affidavit be used for the same purpose? Is there anything he cannot testify to since he knows all of the facts of the case?
An affidavit cannot be used if the other side objects since it is hearsay. You have to be careful about him testifying as to the facts of the case since that could open him up to being cross examined on matters that are otherwise privileged.
Can he refuse to testify? Do you know of any case(s) that I can read about where the judge has testified for a former client?
He really can't refuse to testify if he is subpoenaed. I'm not aware of any published cases with these facts but you have to realize that only some cases that are appealed are published, and most cases aren't appealed so it is a very, very small number of cases published.
And this is an issue that just isn't likely to come up.
Do you know of a rule or law that we can reference that says the judge can testify? I don't mean to offend you or question your response, but I'm trying to give my new lawyer some type of reference point since he's overwhelmed by the case. There are a lot of politics involved in the small town where this is occurring, and I'd like to give him hard facts to help him understand that this is an option we should consider.
There isn't one because the law doesn't work that way. What you would be looking for is a law that says the judge is excluded from having to testify but there isn't a law that says that. A judge doesn't get immunity from having to testify just because they are a judge.
It's no different than if the judge had a car wreck and was sued over that car wreck.
The judge could still be subpoenaed to testify in that case.
They can't be subpoenaed to testify (in most cases) for acts that they perform as a judge but that is a different concept entirely.
Their current status as a judge is not relevant in any way to your case since they weren't a judge when the acts at issue were taking place.
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That sounds great. Thank you so much. You've been very helpful. Excellent work!
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I'm giving you an Excellent rating!