Legal Stuff: Are Surprise Witnesses Real?

I’m a practicing lawyer as well as an author, so I get a lot of questions from other writers about legal stuff. I’ll address some of the more common ones in a periodic series starting today. If you’ve got a particular question you’d like to see answered, leave a comment or e-mail me through my website: www.rickacker.com.

Question: “I’ve heard that there’s really no such thing as a surprise witness. Is that true?”

Answer: Generally. Surprise witnesses are like car crashes: They rarely happen if everyone is paying attention and following the rules, but you’ll probably see one now and then anyway.

Why are surprise witnesses so rare? Before a case goes to trial, lawyers are allowed to engage in a lengthy process called discovery. They get to ask the other side for all sorts of information–including the identities of any witnesses their opponents may call. They then get to “depose” those witnesses, a process in which the witness is required to answer questions under oath for hours, sometimes days or even weeks.

And just to make sure neither side gets surprised, most courts require parties to exchange witness lists before trial. If there’s a surprise witness on one side’s list, the judge will generally either (a) give the other side an opportunity to depose the witness or (b) bar the witness from testifying.

With all those protections, how do any surprise witnesses wind up on the stand? Here are a few ways that can happen:

1. The surprise testimony comes during an emergency hearing (e.g., on a temporary restraining order, or TRO) and there’s been no opportunity to depose the witness or even find out who he/she is.

2. The other side makes a tactical decision not to depose the witness. For example, I saw this happen in a case where the witness lived in Greece and opposing counsel thought his testimony would be inconsequential. They took a gamble (a bad one as it turned out) and decided not go through the hassle of taking an international depo. This wasn’t technically an instance of a surprise witness so much as surprise testimony, but the effect was the same.

3. The lawyer who took the deposition (commonly called “depos” among legal professionals) didn’t ask quite the right questions or didn’t follow up sufficiently on a witness’s evasive or ambiguous answers. It’s common to have junior lawyers handle most of the depositions and other discovery, while senior attorneys handle the trial. As a result, the lawyer handling the examination at trial may take some calculated risks in asking questions that weren’t asked at the depo–and may get surprised as a result.

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