Jeff S. Korek and Abraham Z. Melamed

The cover up is often worse than the crime.  This is a familiar phrase in politics and life alike.  Perhaps our child broke a window and then lied about it, or perhaps our spouse spent too much money on the credit card this month and hid the bill.  But what is clear is that it is generally better to fess up to our mistakes and get ahead of them, rather than pretend they never happened, be confronted with them, and then have to dig our way out of the hole.  But, often one may not heed this advice, because they are hopeful that their spouse will never notice the credit card bill, just as their child is hopeful their parent will never notice the broken window. This concept is no different at trial, when deciding whether or not to present rebuttal witnesses to the anticipated Defendant’s case, in a Plaintiff’s case-in-chief.

Take for example a medical malpractice action, where one anticipates the Defendants will present witnesses to demonstrate that the alleged conduct did not fall below the reasonable standard of care.  Plaintiff’s Counsel may want to affirmatively present witnesses addressing how the conduct of the physician did fall below the standard of care, in order to present the jury with the most favorable view of the issue before the Defendants have an opportunity to present their witnesses.  However, if the Plaintiff’s attorney presents those witnesses, and then it turns out that the Defendants do not present any witnesses as to that specific issue, then the Plaintiff’s attorney will have wasted time, and the jury’s patience, and more importantly will have focused the jury on a potential weakness of the case, which they did not need to know.

This decision would be somewhat simpler if the Plaintiff’s attorney knew they could call rebuttal witnesses after the Defendants case.  However, this issue is not so simple. Some judges will not allow rebuttal witnesses unless the party was never given an opportunity to explore the issue preciously.  Others are more willing to allow rebuttal witnesses. This may affect the decision of counsel as to whether to present such information at the start of the trial, or wait and see what the Defendants do.

As a general matter, “a trial court is invested with broad discretion to restrict inquiry into collateral matters.”  Coopersmith v. Gold, 89 N.Y.2d 957, 959–60, 678 N.E.2d 469, 470–71 (1997).  The sequence in which the issues of a lawsuit are tried, and the conduct of the trial are matters to be regulated by the trial court.  Hutchinson v. Shaheen, 55 A.D.2d 833, 834, 390 N.Y.S.2d 317, 319 (1976).  Thus, “the decision whether to allow rebuttal testimony is committed to the trial court’s discretion and will not be disturbed absent a clear abuse thereof.”  Roth v. S & H Grossinger Inc., 284 A.D.2d 746, 748–49, 726 N.Y.S.2d 774, 776 (2001) citing Rowell v. Callahan, 233 A.D.2d 383, 650 N.Y.S.2d 568.

However, where the primary reason Plaintiff seeks to introduce rebuttal testimony is to simply bolster their own case and counter the Defendant’s, Courts generally do not permit the rebuttal testimony.  Coopersmith v. Gold, 89 N.Y.2d 957, 959–60, 678 N.E.2d 469, 470–71 (1997).  As the Fourth Department explained, a “party holding the affirmative of an issue is bound to present all the evidence on his side of the case before he closes his proof and may not add to it by the device of rebuttal evidence.”  Hutchinson v. Shaheen, 55 A.D.2d 833, 834, 390 N.Y.S.2d 317, 319 (1976).  Therefore, “[h]e may not hold back some evidence and then submit it to bolster his case after defendant has rested, for rebuttal evidence is not contradictory or corroborating evidence of facts already presented but evidence in denial of some affirmative fact which the answering party has endeavored to prove.”  Id.  This power “includes the discretion to disallow evidence at the rebuttal stage that might properly have been offered on the case in chief.  People v. Novak, 41 Misc. 3d 1203(A), 980 N.Y.S.2d 277 (Co. Ct. 2013), citing People v. Harris, 57 N.Y.2d 335 (N.Y.1982); Kapinos by Kapinos v. Alvarado, 143 A.D.2d 332, 333, 532 N.Y.S.2d 416, 417–18 (1988).

Instances Where Rebuttal Testimony Was Allowed

With this rule in mind, there are some circumstances in which trial courts have allowed rebuttal testimony to be introduced, or where appellate courts have held it was an abuse of discretion for a trial court to exclude rebuttal testimony.  For example, where it was not until after the defendants presented technical testimony, that it became clear that expert testimony would be necessary, a trial court might allow rebuttal testimony.  See e.g. Herrera v. V.B. Haulage Corp., 205 A.D.2d 409, 410, 613 N.Y.S.2d 883, 884 (1994).  See also, Saleh v. Sears, Roebuck & Co., 119 A.D.2d 652, 653, 500 N.Y.S.2d 796). However, rebuttal testimony must not amount to mere bolstering of a Plaintiffs’ case.  cf., Harvin v. New York City Tr. Auth., 198 A.D.2d 401, 603 N.Y.S.2d 893.”  See also, Eisner v. Daitch Crystal Dairies, Inc., 27 A.D.2d 921, 921, 279 N.Y.S.2d 247, 248 (1967); Benjamin v. Desai, 228 A.D.2d 764, 766, 643 N.Y.S.2d 717; Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370, 582 N.Y.S.2d 1003); Lowell Assocs. v. Barney Mac, LLC, 13 Misc. 3d 130(A), 824 N.Y.S.2d 755 (App. Term 2006).  Courts also often limit the scope of the rebuttal testimony.  See e.g. People v. Novak, 41 Misc. 3d 1203(A), 980 N.Y.S.2d 277 (Co. Ct. 2013); See also, State v. Hall, 96 A.D.3d 1460, 1460–61, 947 N.Y.S.2d 856, 857 (2012); Young v. Strong, 118 A.D.2d 974, 976, 499 N.Y.S.2d 988, 991 (1986).

Considering it is within the discretion of the court to determine whether or not to allow rebuttal witnesses, where one anticipates the defendants’ witnesses and can determine what rebuttal witnesses they may want to call in the event the defendants call those witnesses, a good practice is to take the judge’s temperature to determine whether or not they are likely to allow rebuttal witnesses.  Take for example a personal injury case involving a surgeon’s alleged failure to diagnose and treat a tumor, where it is alleged (as is often the case in failure to diagnose cases) that if the tumor was detected and treated earlier there would have been a substantial improvement in the plaintiff’s long-term diagnosis.  While the case centers mostly around the conversations between the plaintiff patient and the defendant surgeon, it is always on the trial attorney’s mind whether the defendants will call a radiologist to show that even if the tumor was detected when the plaintiff said it should have been, it would not have made a difference in the plaintiff’s prognosis because the cancer had already metastasized.  The trial attorney must debate whether to call a radiologist in their case in chief to address this point, which will detract from the main arguments of the case, or to wait until the defendants put on their case to see if the defendants call a radiologist to speak to the issue. If the defendants do, the plaintiff’s attorney could then make a request to call a radiologist in rebuttal to show that had the tumor been detected when it should have been, it would have affected the plaintiff’s long-term prognosis.  

One solution might be to wait and see if the defendants raise the issue in their opening statement, or during their cross-examination of the plaintiff’s witnesses.  But if they do not, the plaintiff’s counsel is left with the lingering uncertainty as to whether or not the defendants are strategically waiting until the Plaintiff rests their case before raising the issue.  And so long as the defendants have exchanged a radiologist prior to the trial, Plaintiff’s counsel must wonder if the defendants intend to call that radiologist for this exact purpose.

Another option, if presented with the opportunity, is to take the judge’s temperature toward the end of the plaintiff’s case in chief, perhaps during a brief settlement conference or other opportunity, and so ask the judge if they will allow the plaintiff to call a rebuttal witness if they do not put their own radiologist on affirmatively, during the case in chief.  The hope might be that citing to the above case law, if the defendants had not raised the point about the tumor having already metastasized prior to trial at any point, nor during the plaintiff’s case in chief, that the judge will agree with the argument that plaintiff should be given an opportunity to offer rebuttal to this new theory that is first presented in the defendant’s case.  But there are no guarantees, as it is within the trial judges’ discretion whether or not to allow the rebuttal witness.

When it’s Prudent to Call Rebuttal Witnesses Affirmatively

Ultimately, if a trial attorney feels they have a strong case even in the face of such a claim, and they feel their presentation was strong without raising the issue affirmatively, and doing so will ultimately be a red herring and detract from the merits of the case, they are likely best off not raising the issue affirmatively.  On the other hand, if the defendants raise the issue in their opening statement or in cross-examination during the plaintiff’s case in chief, then it would be prudent to call a witness who can affirmatively explain how the outcome would not be affected by what the plaintiff’s attorney anticipates the defendant’s witness will say.  

In sum, if there is new information that is developed through the defendant’s case, which it is apparent could not have been reasonably anticipated by the plaintiff prior to trial, it is good practice to argue to the judge, citing the above case-law, that one should be allowed to present rebuttal witnesses to the information, so as to allow plaintiff a fair opportunity to develop the issue.  It would seem more likely that in such a case the judge would be more inclined to allow rebuttal witnesses even after the plaintiff has rested and the defendants have presented their case. On the other hand, if the plaintiff can anticipate the need to call the rebuttal witness, they are likely better off presenting the issue up front in their case in chief, unless it does not seem likely that the defendants will raise the issue after plaintiff rests.  This can be quite a gamble, where the high risk could yield a high return, or a harsh result. Ultimately, if the judge feels that the plaintiff should have presented the evidence at the start, they may see it as a cover up and punish the plaintiff’s attorney for not coming out with the information in an affirmative way. And much like the child who broke a window and lied about it or the spouse who spent too much money on the credit card this month and hid the bill, the cover-up is often worse than the crime.

Jeff Korek is the senior trial partner at Gersowitz Libo & Korek. Abraham Z. Melamed is a managing attorney at Derek Smith Law Group.