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Shabbat Parashat Ki Teitzei 5771

P'ninat Mishpat: Testimony of A Litigants Lawyer After He Quits the Case

(condensed from Shurat Hadin, vol. VIII, pp. 502-505)

Case: The litigants’ claims are affected by the different possible interpretations of the plaintiff’s (=pl) mother’s will, but pl was not involved in its preparation. Pl’s lawyer says that he can answer the questions, as he wrote the will. However, the defendant (=def) counters that the lawyer cannot testify because he has an interest in an outcome for pl’s benefit. Although the lawyer is willing to quit the case and thus not gain from the outcome, perhaps he still has an interest or perhaps he remains invalid to testify either way.

Ruling: There is a professional/ethical matter, as the rules of the Bar Association say that one should not serve as a lawyer in a matter in which he is expected to be a witness. However, beit din accepts the lawyer’s explanation that he did not expect to have to testify and that he offered to withdraw from the case as soon as he found out about the issue.
Regarding testimony of a litigant’s representatives, there are various opinions. However, the Shulchan Aruch (Choshen Mishpat 123:11) rules that a representative can testify as long as he does not receive more pay based on the outcome of the matter about which he is to testify. On the other hand, the Shach (ad loc. 23) says that doing so is unseemly.
In a case where the witness is affected by the outcome of the litigation, the Shulchan Aruch (CM 37:18) accepts the majority opinion that once he distances himself from the case, he may testify. However, the Shach (37:32) says that there are many opinions that once a witness is unfit at the time he witnesses the matter, he cannot later become fit to testify before court, and therefore, one could not extract money based on such testimony.
Regarding the matter of non-monetary interests that a witness has in a case, the K’tzot Hachoshen (37:4) cites a machloket on the matter. The Rama (37:9) says that only monetary benefit or that it which is equivalent to it disqualifies one from testimony. The Shach (ad loc.) asks from the gemara (Bava Batra 44b) that says that a borrower cannot testify when it causes his creditor to have property from which to take payment for a loan, so that the borrower not look bad for not paying. This indicates that any type of benefit disqualifies. The K’tzot cites also the opinions of the Mahari ibn Lev and the Maharit, and he himself distinguishes between the witness, who must be clear of any type of benefit and his relatives, who disqualify him only if they have an actual monetary gain. In any case, since there are many opinions that any benefit disqualifies, this should disqualify pl’s lawyer from testifying in a manner that will enable him to win an award. Even in a case of doubt whether someone does or does not have an interest, we do not allow such a person to testify (Nimukei Yosef to Bava Batra 44b) and if he does, his testimony cannot help to extract money.
Therefore, in our case, where pl’s lawyer wants the will to be viewed as having been done in an effective way, his testimony on how it was done should not be valid to help even his former client after he withdrew from the case.

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