Making the defendant testify in the plaintiff’s case-in-chief

Posted Saturday, February 12th, 2011 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

I have never understood the general preference of litigants and attorneys to be the plaintiff in family court proceedings.  “You get to go first,” is the sole explanation for this preference, which is indubitably true.  The collerary is that the defendant gets to go last.  In most competitions  going last is considered a big advantage.  I certainly find it an advantage in family court.  Probably half the family court trials I have lost, I feel I lost because the opposing party testified last–after all the other witnesses had testified.  The opposing party could then dance around gaps in my evidence (a fancy way of saying he or she lied like crazy) with relative impunity.

There’s huge advantages in one’s client testifying last even if the client isn’t inclined to lie under oath.  Testifying after one has heard all the other witnesses testify allows the client to comment on all past testimony and attempt to harmonize slightly conflicting testimony.  It allows the client to comment on gaps or flaws in the other party’s evidence.  Finally, where the client’s recollection of an event is different than previous witnesses for the client, one can simply have the client avoid testifying on that issue (assuming the issue is relatively unimportant) to avoid problems of the client or past witnesses appearing uncredible due to conflicting testimony.  These advantages are one reason I will always try to have my client testify last in his or her case in chief.

However, the plaintiff has the ability to take the advantage of going last away from the defendant by calling the defendant as the plaintiff’s first witness.[1] South Carolina Rule of Evidence 611(c) specifically allows an attorney calling the adverse party as a witness to elicit testimony through leading questions (“When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions”).  In my seventeen years of family law practice, I have never seen plaintiff’s counsel do this to my defendant-client (though they have, on occasion, called my defendant-client in the plaintiff’s case in chief).  I routinely call the defendant as my first witness if I represent the plaintiff and, as noted above, have been repeatedly burned when I failed to do so.

It has been my experience that calling the defendant as the first witness in the plaintiff’s case in chief leads to much more cautious and honest testimony from the defendant and makes it easier to highlight the defendant’s lack of credibility through subsequent witnesses.  Unable to be sure what evidence might be presented by subsequent witnesses, a defendant called as the plaintiff’s first witness is typically less likely to make bold claims that might be contradicted by later testimony or evidence.  Unable to know what gaps might exist in the plaintiff’s evidence, the defendant is unable to testify in a way that highlights these gaps.  Finally in being forced to testify first, rather than being allowed to testify last, the defendant loses the ability to harmonize his or her testimony with other witnesses.

Based on distinctions between the South Carolina Rule of Evidence 611 and the Federal Rule of Evidence 611, in South Carolina there are two big risks for a plaintiff’s attorney calling the defendant in the plaintiff’s case in chief.  The first risk is that the defendant’s attorney will be allowed much greater latitude in questioning the defendant after the plaintiff’s attorney is done with his or her examination of the defendant.  Under the Federal Rule of Evidence 611(b), “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.”  Under South Carolina Rule of Evidence 611(b), “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.”  Thus, while in Federal court a defendant’s attorney would be limited in questioning the defendant to issues plaintiff’s attorney raised in his or her examination of the defendant, in South Carolina court a defendant’s attorney is entitled to an “open cross” of his or her client and can present all desired testimony within the plaintiff’s case in chief.

The second important distinction between South Carolina and Federal court is that the defendant’s counsel is typically allowed to ask leading questions of the defendant on cross-examination in state court and isn’t allowed to do so in Federal court.  Under both the South Carolina and Federal Rule of Evidence 611(c), “Ordinarily leading questions should be permitted on cross-examination.”  The notes to Federal Rule of Evidence 611 place a limitation on this general right to lead on cross-examination:

The purpose of the qualification “ordinarily” is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the “cross-examination” of a party by his own counsel after being called by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff.

Applying these notes, a Federal judge will typically not allow defendant’s counsel to lead the defendant when the defendant is called by the plaintiff.  However South Carolina family court judges typically, although not uniformly, allow defendant’s counsel to lead the defendant when the defendant is called by the plaintiff.  I have had a judge cite Merritt v. Grant, 285 SC 150, 328 SE 2d 346 (Ct.App. 1985) to prevent defendant’s counsel from leading the defendant in the cross-examination).

Despite the risks of calling a defendant as the first witness in a plaintiff’s case in chief, there are too many countervailing risks in allowing the defendant to hear all the evidence before he or she is required to commit his or her story to oath.

A few caveats and warnings:

Sometimes one will want to cross examine a defendant using documents that may need to be authenticated.  There is some risk that the defendant may challenge the authenticity of a document.  While South Carolina Rules of Evidence 104 and 1008 would seem to indicate the court should conditionally allow questioning on a document the defendant will not authenticate, subject to admitting the document when a subsequent witness authenticates the document, not every family court judge will allow such questioning.  Often I prefer to have a defendant unreasonably refuse to authenticate a document–sometimes the defendant will refuse to authenticate his or her own document–so that a later authenticity witness can impeach the defendant.  Sometimes it is better to call a witness to authenticate the document before calling the defendant.

When the defendant is called in the plaintiff’s case in chief, defendant’s counsel will be tempted to do a full “direct” examination of the defendant as part of the defendant’s “cross-examination.” The ability to lead one’s client through his or her direct testimony is generally too tempting to pass up.  However the advantages of testifying last is only partially lost if the defendant is called in the plaintiff’s case in chief.  Doing a full direct of the defendant within the plaintiff’s case means these advantages are fully lost.  If seeking to do a limited cross examination of one’s client with the intent of recalling the defendant in the defendant’s case in chief, make sure you seek leave of the court to recall the defendant in his or her case in chief before concluding one’s examination.  South Carolina Rule of Evidence 611(d) might preclude the defendant from being recalled otherwise (“After the examination of the witness has been concluded by all the parties to the action, that witness may be recalled only in the discretion of the court”).

Finally if one is going to call the defendant in the plaintiff’s case in chief, call the defendant first and definitely avoid calling the defendant after the plaintiff.  Only one time in my career has an opposing attorney called my client in her case in chief after the plaintiff testified.  During my “cross examination” of my client, I had him do his full direct examination and testify regarding disputes he had with the plaintiff’s prior testimony.  In my client’s case in chief I avoided calling him as a witness, even though there were a few items I wouldn’t have minded him clarifying.  In plaintiff’s rebuttal, she attempted to dispute some of my client’s testimony.  I objected, noting that rebuttal was limited to challenging my client’s case in chief and that my client had not testified in his case in chief.  The plaintiff’s attorney was completely precluded from having her client challenge my client’s testimony.  I have never understood opposing counsel’s strategy in calling my client in her case in chief (a generally good idea) after her client testified (an inexplicable idea).

Despite the risks of allowing a defendant to present all of his or her testimony in my plaintiff’s case in chief, while being led by his or her own attorney in doing so, I have routinely been burned when I have allowed the defendant to testify last and have often destroyed the defendant’s credibility by preventing the defendant from hearing the other witnesses before committing his or her story to oath.  Calling the defendant as the first witness in a plaintiff’s case in chief is a strategy more family law attorneys should employ.
[1] For the purpose of this blog simply note that when the defendant is the moving party in a rule to show cause, the advice is to call the plaintiff as the first witness in the defendant’s case in chief.

7 thoughts on Making the defendant testify in the plaintiff’s case-in-chief

  1. Joe Underwood says:

    Of course this totally overlooks the advantages of being Plaintiff at the Temporary Hearing where the judge has a mere 15 minutes devoted to the proceeding. I vastly prefer having the Plaintiff under such circumstances because I get to frame the issues. If you think of the judge’s mind is a blackboard, I get to write on it first, and Defendant has to use at least some of his precious time erasing it. I also get to control the clock. And my experience at Temporary Hearings is that the Plaintiff’s counsel actually gets to speak BOTH first and last. That means I have the advantages of both primacy and recency, and Defendant’s argument is squeezed into the wasteland of the unmemorable middle.

    I’ll take those advantages and the attendant chance to win at a Temporary Hearing every time. Once I win there, I have the momentum (often custody, possession of the home, and child support), and that is a huge status quo advantage at the time of the Final Hearing. Indeed, unless my Plaintiff screws up, we won’t likely go to a Final because the Defendant, having experienced a set-back, will not want to revisit the courtroom.

    1. Joe:

      I suspect you confuse the advantage of the plaintiff going first with the advantage of the plaintiff having the stronger position. Generally the plaintiff is the party seeking to change the status quo. Folks typically avoid upending the status quo unless they think they have a strong likelihood of successfully doing so. Thus, plaintiffs frequently (but not always) have the stronger position. When a plaintiff changes custody at a temporary hearing because a defendant is smoking crack, the advantages of primacy didn’t cause the result; the advantage was the crack-smoking opposing party.

      My experience has been that when both parties have an equally strong claim at the temporary hearing, the plaintiff’s advantages of primacy are often lost–especially when the defendant’s attorney is smart enough to file and serve a proper cross motion for temporary relief and/or seek leave to file additional affidavits under the authority of Rule 21(b), SCFCR.

      Give me a week, or more, to analyze a plaintiff’s motion for temporary relief and I can thrown numerous stones in his or her passway.

  2. MJ Goodwin says:

    I love to call the defendant as my first witness. It is one of my very favorite things to do in a trial. And I am always amazed at how few attorneys have warned their client that I will likely do that.

  3. Given the massive advantage that being later to act has in poker, I would have thought that the same would be in a court battle. Court cases seem so allegorious to poker as well – your hand is at least partially hidden, you have the ability to bluff, and one’s ability to read their opponents demeanor and actions may influence one’s own actions. In poker, money almost always flows to the left for this reason.

    Perhaps one should look at the stats on how often the plaintiff wins versus the defendant in seemingly even court battles?

  4. Rachel says:

    When my teacher showed us a video of Plantiffs and Defendants, I was shocked at what Chevron did to those people, well they didn’t really do anything, but they poisoned all the things in the rain forest where some people lived, the oil also caused lots of crops to die and people got cancer, it was just horrible when I watched it.

  5. Bob says:

    I am currently the Plaintiff in a plenary hearing to determine the validity of a signed Marital Settlement Agreement the defendant my wife brought the action against me. The Defense (my wife) testified for 4 days on direct, my attorney crossed for 3 days, the defense redirected but was limited so they finished after 15 minutes. In a surprise move, which I was prepared for in the beginning of trial to be possibly called as there first witness, they made this move of calling me as there second witness. I am not an attorney but I agree with the author here. Calling me as there second witness was a big mistake especially since I was prepared and had already heard her direct and cross. I was direct examined by opposing counsel last week he was not allowed to lead me as I was not an adverse witness in anyway. Now I am still on direct by opposing counsel, my attorney plans to do my complete direct now on cross and if he wants he can lead me. Also I will now not put a case on in chief so we will object to her as possible rebuttal witness….. Love this article (it happened to me) called as not there first witness but second, I think it was a dumb move.

  6. NC says:

    Can the Defendant refuse to testify if called first by the Plaintiff?

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