Witnesses Called Adversely: A Conundrum for Both Sides of a Case

By Melissa M. Gomez
Special to the Legal

In a medical negligence trial, a defendant nephrologist was accused of failing to appropriately monitor the raising of a patient’s blood sodium levels, which had been depleted to a life-threatening extent by excessive alcohol consumption. The claim was that, as a result of the doctor raising sodium levels too quickly, instead of having a massive hangover, the plaintiff was left with permanent and severe neurological deficits.

The dilemma for the plaintiff was whether to call the defendant doctor as an adverse witness in the case. The decision to call the doctor would give the plaintiff a chance to present the defendant in an adversarial context, hitting the target issues hard and quickly and letting the jurors form a less than optimal first impression for the doctor. This is a reasonable and wise decision.

The decision not to call the doctor would provide the jury the chance to hear the case facts void of the doctor’s input, especially if he was generally likable, which could make the adverse examination backfire. This also is a reasonable and wise decision.

In this case, the plaintiff did decide to call the doctor adversely. Now the defendant had a dilemma. In this trial venue, defense counsel could perform the entire direct examination during the plaintiff’s case after adverse, or it could do some quick rehabilitation on key issues and then call the doctor again for full direct in the defense case. If the defense performs the full direct examination with the witness during the opposing case, it can stop the plaintiff’s momentum and interject defense themes, while immediately presenting a better image of the defendant early in the case instead of asking jurors to wait until after the plaintiff’s case to hear them. The full direct examination after adverse also denies the plaintiff a second bite at cross-examination during the defense case. This is a reasonable and wise decision.

If the defense decides to wait and call the defendant for direct examination during the defense’s presentation of evidence, the defense will reap the benefit of hearing all of the plaintiff witnesses, enabling it to fully address the opposing testimony in examination strategy. It also gives more air time to a likable defendant. This is a reasonable and wise decision.

So, what is the advice? The issue that I have seen is that attorneys get comfortable with choosing their strategy based on what has worked in the past and what they are most familiar with, often doing it the same way every time. This is a mistake. Instead, the important thing to do is evaluate the strategy of each case separately, because, while both decisions can be completely reasonable and wise, both strategies can backfire given the wrong case.

So, let’s go back to our nephrology case. The defendant doctor was the kind of person who was very intelligent and literal in his work. On the other hand, he was a terrible communicator as a result of a mixture of both his personality and cultural makeup and so was prone to say unhelpful things during his testimony.

As stated, the plaintiff called him adversely to give the jurors a negative first impression of him, which he was sure to provide as a result of his communicative shortcomings. The defense decided to rip the band-aid off, stopping the plaintiff’s momentum short by examining him fully after adverse, during the plaintiff’s case. Defense themes were introduced, the defense was immediately able to rehabilitate the doctor’s image and the doctor was not presented again during the duration of a several-week trial. I think both sides made the right decision based on this particular case and this particular defendant.

In a different case, though, with a defendant who communicates well, whether a doctor or a manager or a delivery truck driver, the plaintiff may be doing its own case a disservice by calling a defendant adversely that may be likable or sympathetic to a jury. In this instance, it is the plaintiff who is giving the defense two bites at the apple of presenting a witness who will be well received twice during the trial: both in the plaintiff’s case and the defense case as well. On the other hand, in a lengthy trial, calling an unlikable defendant adversely may also mean that the jurors will have lots of time to forget how much they dislike him or her.

For the defense, with such a witness, presenting the entirety of the testimony during the plaintiff’s case presents the defendant’s testimony early in the trial. As a result, memories of likability can diminish with time and the inundation of other information, especially considering that the witness will be sandwiched within adverse testimony.

Getting too comfortable with a mode of how to handle these situations can be dangerous. First, if you go to trial frequently, opposing counsel knows what to expect. Second, while your strategy may work in a case today, it can be detrimental in the one you have next month. There are factors too important to consider for it to be wise to do it the same way every time. Most importantly, the length of trial and tendency for jurors’ memories to fade as well as the likability or potential for a witness to be sympathetic are factors. In cases where a defense witness is important enough to potentially be called adversely, he or she is important enough to make that decision with care.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at [email protected] or call 215-292-7956.