Litigation Strategy Trial Strategy

To Call or Not to Call an Adverse Party or Witness

witness_87617035In civil cases, you can call an adverse party or witness in your own case. Evid C §776(a). But just because you can doesn’t mean you should. Before deciding to call an adverse party or witness, definitely check out this chart laying out the strategy considerations—reasons to do it and reasons to steer clear.

Reasons to Call an Adverse Party or Witness

Reasons Not to Call an Adverse Party or Witness

The witness has evidence, not otherwise obtainable, needed for your case.

Opposing counsel will use this chance to present as much of the other side’s evidence as possible.

Your opponent’s lack of appeal is important to your case, and the adverse witness is unappealing.

The jury’s dislike of an unappealing witness may inadvertently extend to your case.

To tell the story of your case sensibly, the witness is the next in logical order.

Evidence from the lips of an adverse witness may come reluctantly and may cast an unfavorable light on your case.

You want first chance to cross-examine the witness, before your opponent can elicit testimony favorable to opponent on direct examination.

Your opponent will be able to rehabilitate the witness after your examination, rather than offering damaging testimony first to blunt your anticipated cross-examination.

You want to catch your opponent unprepared.

Do not count on your opponent’s lack of preparation.

You want to impress on the jury that you’re not afraid of this witness, or that you’re the only lawyer who will give them the whole story.

The jury may not understand your motives and may think that you called a witness who backfired and turned hostile on you.

You want to get this witness out of the way.

You may lose the possibility to cross-examine this witness with information learned from later witnesses.

You need this witness’s testimony and can’t rely on your opponent to call the witness.

It may be better to see whether your opponent calls the witness, and then cross-examine. If opposing counsel doesn’t call that witness, you may be able to do so on rebuttal.

If you found this chart helpful, check out all the other practical advice on calling adverse parties or witnesses, including the procedures for doing so, in CEB’s Effective Introduction of Evidence in California, chapter 6.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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