EAST ST. LOUIS – Class action lawyers may have taken a risk by calling Chief Justice Lloyd Karmeier to the stand in their trial against State Farm, according to an article published in 2013 by Corporate Counsel magazine.
In pointing out the perils of calling adverse parties as witnesses, writer Michael Stick painted scenes that might have turned real had trial taken place in Hale v. State Farm.
“To begin with, using an adverse witness on direct during your case in chief for any extended period of time is usually a mistake,” Stick wrote.
“Moreover, your case in chief is more than simply the time to offer evidence establishing your claim or defense.
“It is your only opportunity to introduce your witnesses to the judge or jury and convince the trier of fact that your people are likable and credible.
“Putting an adverse party on the stand during your case in chief is similar to inviting your biggest competitor to participate in the private sales meeting you have scheduled with a potential customer.
Stick wrote that it’s easier and less dangerous to cross examine an adverse witness during an opponent’s case.
He wrote that in most jurisdictions, counsel have a right to ask leading questions of an adverse witness on direct examination and impeach the witness if necessary.
“Nonetheless, you likely will not enjoy as much control over the adverse witness during direct examination as you would during cross examination,” Stick wrote.
“To make matters worse, juries in particular might sympathize more with an adverse witness being examined on direct in your case than with that same witness during cross examination in your opponent’s case.
“They might also be more critical of the examining attorney.”
He wrote that juries often expect witnesses to respond to friendly open ended questions before getting cross examined with leading questions.
“The adverse witness examined on direct during your case will be treated differently than most witnesses at trial,” Stick wrote.
“Her or she will almost immediately be confronted with leading questions from an attorney who has no intention of allowing the witness much freedom in responding.”
This might seem odd to jurors and cause them to conclude that the witness is being treated unfairly, Stick wrote.
He wrote that the most compelling justification for calling an adverse witness is when only the testimony of that witness can establish a necessary element of a case.
He wrote that even then, an effective deposition should suffice.
Offering deposition testimony prevents a witness from backing away while reserving live testimony for cross examination, he wrote.
“The fact that a witness is more helpful than harmful does not justify putting the witness on the stand,” he wrote.
“Your case in chief should be smooth, clean, and completely presented in your favor.
“The fact that the potential witness is adverse does not make that witness any more attractive.
“Indeed, it makes the witness more dangerous.”