The invalid witness affirmative defense primarily applies to cases involving 3rd party card debt lawsuits. Occasionally, an attorney for collection agency or junk debt buyer will use himself/herself to answer interrogatories, or act is if he or she has personal knowledge of the account in question. In order for this to be true, the attorney would be required to work for the original creditor. This almost never the case in this types of lawsuits, and these answers from the opposing attorney need to be challenged as an invalid witness.

Attorney’s responses to any questions in the discovery process need to be challenged because they are not a qualified response from the plaintiff. The plaintiff is the person or entity that discovery questions are targeted at so only the plaintiff can answer the interrogatories, not the plaintiff’s attorney. By challenging the attorney’s responses to the discovery process questions it is possible to get majority or all of the attorney’s responses to be stricken. In fact, there have been cases when defendants have successfully had their cases dismissed because the opposing party did not comply with discovery regulations and requirements.

When challenging a plaintiff attorney’s responses in the discovery phase, the defendant most likely will be able depose the attorney. However, deposing the attorney isn’t necessary to get the outcome most beneficial to the defendant. Many attorneys are very predictable which allows defendant to take advantage of their predictability and sometimes bad habits when pushing for a summary judgement.

Upon challenging the opposing attorney, he or she will usually make an objection that the defendant is trying to delay or harass. At this point, the best course of action may be for the defendant to file the motion for summary judgment citing the fact that the plaintiff (not the plaintiff’s attorney) failed to answer the discovery questions as the reason for case dismissal in defendant’s favor.

This may or may not be decided in the defendant’s favor, but it’s certainly worth a shot. An invalid witness defense is just one of many types of Affirmative defenses a defendant can use to win a credit card lawsuit. For more information on these types of defense, click here.