Want to see experienced trial lawyers argue endlessly? Ask them what order to call witnesses in. Like most aspects of trial, there is no one-size-fits-all answer. Here are considerations I have picked up over from lawyers and from the best teacher-experience:
- The first witness – The first witness cannot hurt you. And, it’s good if the first witness can deliver some suspense or a good overview.
- Who can counter who – Can one witness prove another witness right or wrong immediately? Call them right after and quote the previous witness’s testimony for a response.
- Does a witness’s testimony depend on facts not in evidence yet? – Think about how prior testimony (deposition or trial) can be used with a witness.
- Match the order of opening – your opening should be designed to tell an engaging story. You can sequence your witnesses the same way.
- Progressive disclosure – Think about what parts of your case should come before others to build tension and keep the jury interested.
- Chronological – take the piece of the story each witness will tell and order them chronologically.
- Is the jury ready to receive the witness? – Jurors are not usually ready for emotional damage witnesses until they have accepted liability.
- 1-2-3 – You can use your first three witnesses to offer proof of the three big parts of your case. (Rule, violation, damage).
- Call the plaintiff near the end – Experienced trial lawyers know you are most vulnerable when your plaintiff is on the stand. Calling them later in the case allows them to get off the stand faster, because of a lot of the key material will already be in evidence.
- Rule witness – Using witnesses early to set standards and rules for determine liability.
- Change the mood – People like a change in tempo. Change the emotion with each juror. Mix good guys with bad guys. Too many liability or damage witness in a row can get boring and feel repetitive.
- Save something big – Start strong, end strong. Save a good witness for the end.
- Who can hurt you? – Might be better to call them early so the jury can forget about them and you can discredit them the rest of trial. Or, it might good to call them after you have discredited the defense.
- Experts, early or late? – Sometimes it’s good to call an expert early to set rules and standards. Experts can also refer to otherwise inadmissible hearsay. Calling experts late to sum up the case can also be effective. They can directly respond to statements made earlier in the case, which is especially nice if you pay your expert to sit in on the trial.
- Who gets to stay in the courtroom? – Not everyone gets to stay in the courtroom. If they defendant or their expert is going to sit in the courtroom, it might be good to call them early before they learn the ropes.
- Chunk related witnesses – Sometimes witnesses need to be chunked together to prove a larger point. This is more important in longer trials.
- How will the jury feel when the witness is done? – Use a witness late in your case that might make your jury feel anger or disgust with the defense.
You probably noticed that several of the guidelines and considerations above contradict each other. That’s the point; they are not rules. Only questions to consider. There is not right or wrong answer, and sometimes it is out of your control.
Try writing all the witnesses’ names out on index cards and move them around on a conference table until you find the right order.
By Aaron Broussard – Louisiana Advocates, April 2017
Wrongful Death Attorney
Personal Injury Attorney