Paralegals as Witnesses

Paralegals called as witnesses in court proceedings seem to be cropping up in the news this week.  In one case a witness has denied meeting with a police detective. That witness will be testifying at a search warrant hearing as will “a paralegal who brought her to speak to police and another lawyer that was involved in the case.” In another the paralegal has been called as a defense witness in a murder trial to testify regarding an incident involving the murder victim. The report states:

[She] said on the stand that while she was analyzing jewelry at the couples’ Mocksville home as part of a court-ordered appraisal of the Turners’ belongings, Jennifer Turner shoved her after becoming upset that jewelry purchased before the couples’ marriage was also to be appraised.”Mrs. Turner was standing about 6 or 8 feet away and said, ‘I want you to leave now.’ And Mrs. Turner charged at me. She put her hands on my shoulders and shoved me back and said, ‘Get out!’ I was stunned,” McMullan said, adding that she was especially frightened since she was 18 weeks pregnant at the time.

Video of her testimony is available through the link.

While paralegals can go through their entire career without becoming a witness in a legal proceeding, it is not unusual and every paralegal should be aware that each event of their day could lead to their being called to testify. This means keeping good, comprehensive records of those events in each client file.

One difficulty is that on occasion what must be recorded is what didn’t happen, as in the story Silver Blaze in which Sherlock Holmes informs Inspector Gregory:

Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

Paralegals are not expected to record directly what did not happen. However, if one can show that records are regularly and comprehensively kept, the absence of a record becomes significant. For example, if a law office keeps a telephone log of every call that comes into the office, the absence of a call is evidence that none came in. This can be important when a client has filed a complaint or is claiming that you did not return a call. If you keep good records of your conversations with clients the fact that you did not record a statement can be evidence that you did not give the client the legal advice she now claims you gave.

There are some times though when you should actually be recording the absence of problems through records of what was present. For example in a will contest claiming either incompetency or undue influence, you may be called regarding the testator’s demeanor, state of mind, clarity and so on. Further, you may be called upon to testify many years after you actual interactions with the client. Thus, the file should, at least, reflect the absence of abnormalities. Better yet, it will reflect that you asked questions or engaged in discussions specifically intended to elicit signs of incompetency or undue influence.

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