Don’t forget rebuttal

Posted Wednesday, June 26th, 2019 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

One of the biggest mistakes I see my family court colleagues making is forgoing the opportunity to present rebuttal (sometimes called reply) testimony. Rebuttal is the testimony the Plaintiff presents to rebut the testimony the Defendant presented in his or her case in chief. No attorney who handles family court appeals–and is presented with a record in which the Plaintiff is silent on many of the Defendant’s allegations–would forgo rebuttal.

In lieu of calling rebuttal witnesses, most attorneys attempt to “rebut” the Defendant’s testimony by cross examining the Defendant’s witnesses. This is often a less effective, and always an incomplete, approach. If a Defendant’s witness is lying, no amount of cross examination will get most witnesses to concede that fact. If the Plaintiff has a different recollection of the events a Defendant’s witness describes, there is often no effective cross examination to establish the Plaintiff’s version of events. Most often, it is the Plaintiff, and the Plaintiff’s witnesses, who can best dispute the testimony the Defendant presents. Hence, the usefulness of rebuttal.

Another advantage of calling rebuttal witnesses is that it gives Plaintiff’s counsel greater time to prepare to respond to defense witnesses’ testimony. When hearing unexpected facts emerge from defense witnesses’ mouths, one has limited time to prepare an effective cross examination of those witnesses. Rebutting such testimony later in the case, by calling the Plaintiff or Plaintiff’s witnesses back to the stand, means one isn’t preparing testimonial examinations on the fly. Further, this gives one time to obtain exhibits that might undermine the defense testimony. Unlike most trial exhibits, which, if discovery has been sought, need to be provided prior to trial, one can use previously unproduced exhibits to rebut testimony of defense witnesses if one can demonstrate that this testimony was not anticipated. The rationale for allowing such previously unproduced exhibits into evidence is that these exhibits only became relevant when the defense witnesses provided such unexpected testimony.

The final advantage of rebuttal testimony is that it provides the Plaintiff the opportunity to comment directly on damaging but inaccurate testimony from the Defendant and his or her witnesses. There are two sides to every story: rebuttal allows the Plaintiff to present his or her side. As a family law attorney who handles both trials and appeals, I know a trial record that presents the Plaintiff’s side of the Defendant’s story makes it much easier to represent the Plaintiff on appeal. I’m handling a number of appeals right now and the only case in which an attorney other than myself called rebuttal witnesses was an attorney, Theresa Marie Wozniak Jenkins, who also handles appeals. This is not coincidence.

I suspect one reason that Plaintiff’s attorneys do not call rebuttal witnesses is that they do not set aside sufficient time for trial. In estimating the amount of time needed for trial, rebuttal time should be a consideration. Often, as the end of the docketed time approaches, a Plaintiff is left with the options of foregoing rebuttal or continuing the case to provide time for rebuttal–which can delay resolution for weeks or months. It’s not surprising most attorneys then forgo rebuttal. However if the dispute is significant enough to merit the expense and risk of trial, it is foolish to forgo rebuttal.

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