What’s so primo about primacy?

Folks will often contact my office with a desire to file a divorce or custody case immediately, “before the other side does.” Sometimes there is a need for speed: conditions within the marriage have made continued cohabitation unsafe; the other parent is acting dangerously around the child. More often this urgency is nothing more than a desire to be the Plaintiff, which popular culture perceives as having the advantage.

The perceived benefits of being the Plaintiff confuse cause and effect. Typically, the person who files first files because he or she has the stronger case. There, a successful result doesn’t reflect primacy so much as the stronger case. Other times the Plaintiff is the party who is seeking some change from the status quo (as in child support, custody or alimony modification cases). That such litigants often achieve these results has nothing to do with primacy but simply reflects they had strong enough facts to merit seeking modification.

Given my choice, I actually prefer representing Defendants. A minor advantage is that, for multi-day trials, the Defendant doesn’t need to bring his or her witnesses to court the first day. Since many cases settle the first day of trial, the Defendant’s witnesses may never need to appear. The convenience of witnesses (and the ability to save on witness fees) is a small advantage of going second.

The bigger advantage is the ability to see the Plaintiff’s case-in-chief before beginning one’s own case. This allows one to add witnesses and evidence to bolster corroboration on factual disputes that didn’t appear so disputed before trial began. It allows the Defendant’s witnesses to not only present evidence and testimony favorable to the Defendant’s position but to also dispute evidence and testimony presented by the Plaintiff’s witnesses. The ability to observe and react is a great advantage of going second.

There are two ways to partially counteract the advantages of going second. The easiest is to call the Defendant as the first witness in the Plaintiff’s case-in-chief. This is a strategy I almost uniformly employ but rarely see others doing. Calling the Defendant first actually gives the Plaintiff the advantage of going second as it regards the Plaintiff’s own testimony–however it does not remove the Defendant’s advantages as it regards all other witnesses.

The second way to counteract the Defendant’s advantage of going second is to call numerous witnesses in the Plaintiff’s reply case: the portion of the case after the Defendant’s case-in-chief in which the Plaintiff can call witnesses and present evidence that replies to the Defendant’s case-in-chief. In a sensible legal culture perhaps 20% of total trial time might be devoted to this reply portion. In practice many Plaintiff’s attorneys forgo reply testimony or only call the Plaintiff briefly to provide reply testimony. Instead they sometimes try to anticipate the testimony the Defendant will provide and attempt to address it in the Plaintiff’s case-in-chief.

One reason Plaintiffs typically provide little reply testimony is that it requires the Plaintiff’s witnesses to remain under subpoena (subject to recall later in the trial) and sequestered (unable to sit in the courtroom or discuss their testimony or other’s testimony) after they testify in the Plaintiff’s case-in-chief. This is a tremendous inconvenience to the Plaintiff’s witnesses. Further substantial reply testimony is not part of the legal culture in all but the most complex cases. In bench trials there is a specific concern over annoying a judge by devoting substantial time to reply testimony, especially if reply testimony causes the trial to run long.

However anticipating the Defendant’s evidence in the Plaintiff’s case-in-chief, rather than responding to it in reply, sometimes leads Plaintiffs to present testimony that the Defendant had no intention of addressing but can now dispute in his or her own case-in-chief. Further some Plaintiffs don’t address anticipated testimony of the Defendant in their case-in-chief, which causes much of the Defendant’s case-in-chief to remain uncontroverted unless the Plaintiff provides a substantial reply.

That Plaintiffs often have the stronger case has nothing to do with going first but everything to do with the nature of how legal disputes are brought. Given the choice, I’d rather go second.

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