I just finished a trial in which opposing counsel employed a counterstrategy I had never before encountered to a strategy she had suspected I would employ because I had blogged about it: Making the defendant testify in the plaintiff’s case-in-chief.
As that blog suggests, I represented the Plaintiff and called the Defendant as my first witness. After I finished my cross-examination, opposing counsel reserved examination of her client for her case-in-chief. This gave her the ability to review and discuss my cross-examination with her client prior to putting her client on the stand. They were able to review evidence and discuss lines of questioning that could help blunt the impact of my cross-examination. Had she simply begun questioning her client when I was done with my examination she would not have had the ability to review my cross-examination with her client prior to presenting her client’s direct examination.
The disadvantage of reserving her client’s testimony is that I got a second full whack at the Defendant. If opposing counsel did her direct examination of her client in my case-in-chief, my questioning on re-cross would have been limited to items she brought out on her examination. Instead I was entitled to re-examine the Defendant on any issue, including issues I had inadvertently omitted in my first examination and lines of questioning suggested by opposing counsel’s intervening cross-examination of my client.
I suspect opposing counsel presented a stronger, more coherent examination of her client by creating the ability to review my cross-examination with her client prior to putting her client on the stand. I know my subsequent second whack scored more points than I might have scored on re-cross. I have no idea how these costs and benefits might balance out in general. However I applaud opposing counsel for employing such a thoughtful counterstrategy.