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Plaintiff's case and witnesses

Lynwood, CA |
Filed under: Lawsuits and disputes

Are Plaintiff's required to put on their witnesses first in a case?? What are the exceptions to that rule. Can a hostile witness be required take the stand (i.e. Defendant) before Plaintiff has testified?

Attorney Answers 3


Great Qs about trial strategy.

Generally, yes, plaintiffs put their case in first. If your court allows it, plaintiff's rebuttal witnesses can be called for the first time during the defendant's case-in-chief. And yes, defendant can be called as a witness before plaintiff testifies.

Attorney Horan is licensed to practice in Massachusetts. The response provided here is informational only, not legal advice, and does not create an attorney-client relationship.

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Yes, the plaintiff must first put on the plaintiff's case in chief. There typically aren't any exceptions, unless there are two consolidated cases in which there are plaintiffs in each of the two cases.

A defendant could conceivably be called to testify first, before the plaintiff testifies, in the plaintiff's case in chief.

Sometimes, third party witnesses can be called out of order if their availability is limited.

See California Evidence Code Section 776.

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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If the plaintiff wants to, he or she can call the defendant to the stand at any point in the plaintiff's case. First witness. Last witness. Anywhere in between. And, unlike "friendly" witnesses, they can be asked a steady stream of leading questions, like ..."isn't it true that ...?" Once you are through with them, the defendant's lawyer can ask questions on cross examination. However, questions on cross cannot be outside the subject matter ("the scope") of your direct exam -- in other words, the cross cannot break new ground.

Plaintiffs have the right to put on rebuttal witnesses following the defendant's case in chief. However, that doesn't mean that you can put on witnesses who are simply saying the same thing that was said earlier. The purpose of a rebuttal witness is to challenge something that was said during the testimony on the defendant's side of the case. Beware of holding back witnesses. The purpose of rebuttal testimony is limited and if you attempt across the line the judge might bar their testimony. That would leave you in a pickle if you have held back something really important that could have been, and should have been, presented in your case in chief.

Good luck!

This answer is made available by the above lawyer for educational purposes only. It is also offered as a public service to give you general information and a general understanding of the law. This answer is not intended to give you specific legal advice. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. And, no attorney-client relationship has been formed. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance.

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