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A second whack at the piñata

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.

  • Hi Greg,

    Thanks for the post. I’m contemplating calling a defendant in an upcoming trial as a witness in my case in chief as you suggested in your previous post. As a technical matter, in the event there are interrogatories or a pre-trial conference do you list the defendant on any pre-trial witness lists or in discovery when it asks any witnesses you plan on calling? Are opposing parties just fair game since they are part of the case? I guess where I am coming from is it seems like a portion of the strategy in calling an opposing party is the unexpected nature of it.

    Thanks!

    Tripp

    • Tripp,

      A standard part of my response to standard interrogatory one is: “The Plaintiff [or Defendant] reserves the right to call any of the Defendant’s [or Plaintiff’s] listed witnesses at trial.” I think that’s sufficient.

  • I am always amazed at attorneys who have not prepared their client for this possibility.

    • That’s what I found interesting about opposing counsel’s strategy. She had clearly prepared her client for the possibility that I would call her as my first witness and made the deliberate decision not to do her client’s direct in my case-in-chief. As the blog notes, there were advantages and disadvantages in this approach and I think it would be impossible to determine beforehand whether which approach is better. Her approach was certainly unique to my experiences.

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