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What reasons can be given to object to a witness in a employment matter before the hearing?

San Diego, CA |

In a retaliation claim, a personal assistant of the former manager is being brought in to testify my performance (the retaliation claim is valid legally). What a are some good reasons to object before the hearing?

Also there are some parties who are involved in the reports that I made - they are also being brought in to testify on performance when the complain is about retaliation. What are some good grounds to object any of these circumstances before the hearing?

What reasons people typically give to object to a witness (from being admitted)? Any other tips?
Is conflict of interest is a valid basis? If it is bias, what need to provided to establish bias?

Attorney Answers 5

  1. I think that you misunderstand the potential utility of this Q and A service, and that you are being unrealistic in what you can reasonably expect to accomplish through posts here. The questions you ask cannot be reliably answered on the basis of these scant details. These are the tough questions of in-the-trenches trial practice. All possible answers depend on the circumstances.

    It is very clear that you need an attorney, even if just for an hour or so of consultation.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

  2. Your post is woefully void of the facts needed to give guidance about your situation. Generally, precluding a percipient witness from trial is very hard.

    A few basic reasons you might be able to use to preclude a witness include (1) The witness was not included on the pre-trial witness list and is being presented for testimony other than impeachment, (2) the witness was known to the other side when it answered discovery that clearly called for the identity of the witness, but they intentionally withheld the name to prevent you from learning of the witness, (3) after an offer of proof, the judge determines that the witness' testimony is irrelevant to the issues of the case, (4) the witness testimony is cumulative and would involve an undue consumption of time, weighed against the probative value of the evidence to be provided, (5) the testimony of the witness would be too prejudicial compared to the probative value of the testimony to be offered, (6) the witness' testimony is not based on personal knowledge and there are no hearsay exemptions or exceptions that would allow the witness to testify, (7) the witness is not competent to testify (either because of age or mental state), and perhaps several more.

    Conflict of interest and bias are not a reason to preclude a witness. Credibility is a key component to every witness being presented, and things like bias and conflict of interest, if proven within the trial, are some of the best ways to challenge a witness' credibility. However you do that within the context of the witness examination, and through other witnesses and then argue to the judge or the jury at the end of the trial that the testimony of the witness should not be trusted or believed because of the conflict of interest or bias you demonstrated.

    This is very complicated stuff and many attorneys shy away from trial because of the complexity. If you think you can satisfactorily engage in a trial, you are deluding yourself and you are going to hurt your case by doing so. Find an attorney to represent you in the trial, or at least to shadow you to assist you with this process.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  3. Hopefully a person who has never flown a plane before would never attempt to fly a commercial jetliner, and as the plane is hurtling down the runway for takeoff, post questions on a website "what do I do now, how do I get the speeding plane's nose up?" You need to retain an experienced employment attorney who knows the process. Otherwise, having read AVVO posts for years, you will be one of the posters asking something to the effect that "now that I have lost my case, how do I appeal the ruling against me?"

    Click Blue Link Below for Article on Rule of Evidence:

    Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.

  4. I agree emphatically with the three previous answers your received. I write to add that we also have no idea what kind of employment matter you have or what forum you are in. Are you in state court? Federal court? Appellate court? An California Employment Development Department (EDD) / Unemployment Insurance Appeals Board hearing? A Division of Labor Standards Enforcement (Labor Commissioner) hearing? Workers' compensation?

    It all matters. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

  5. Simple Tip: ask the witness, in a very polite way, how long she has worked for the company, whether she likes her job (yes), whether she likes her boss (yes), whether her family depends on her income for household expenses, and how long she intends to keep working for the company.

    A good lawyer will gently ask these questions and not beat up a witness who is in this no-win situation. You don't need to object to witness testimony, and you don't need a megaphone to show possible witness bias.

    You would benefit from having experienced trial counsel on your side.

    Best regards,

    David A. Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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