Inevitably in a litigator’s career, he or she will encounter a surprise witness at trial or call one of their own. The logistics of how this happens are varied and plentiful: Sometimes, this is simply a function of a party not expecting the other side to call a witness even though the witness was previously disclosed. It happens. Next time, remember to try to get a definitive list of who will be called at trial and depose or at least interview these people if possible. Sometimes, there are more nefarious efforts in play by your opponents or, frankly, a bad ruling or two may lead you into this territory. Fear not. With a couple of simple rules, you can navigate cross-examining a surprise witness!
First things first: Figure out who this person is and whether you can speak with them, even in the hallway of the courthouse. If a witness is being called to testify and he or she is already at the courthouse, the other side has inevitably “gotten” to them. Nevertheless, if he or she is a fact witness and ethical rules do not prevent you from speaking with this person, it is perfectly fine to call the witness or interview him or her on the spot. At the very least, you will know what the witness plan to say or why he or she is there to testify.
Then, regardless of whether you’ve been able to interview this person, use the resources available to you. This means checking with your client and your own fact witnesses to gather any and all information on the witness’s identity and wealth of knowledge. This tool is effective because you may be able to rule out what the witness doesn’t know (which you can lead the witness through during the examination). You may also find postings on social media or get background on the witness’s employment with a simple Google search. This is not a background check; it is a tool to determine what this person may know.
It’s important to remember that you can use surprise witnesses to your advantage, often to establish industry standards or relatively innocuous facts unrelated to their direct examination. For example, I was once involved in a complex insurance-coverage case that intersected issues of a toxic substance exposure, multi-state contract interpretation, and choice-of-law issues that turned on whether the location of the exposure took place on a movable drilling rig. It was like a scary law school exam. Even though the other side called a surprise witness to talk about facts relating to the contract, he had a background in drilling and was able to provide helpful testimony on the ins and outs of the drilling industry. This helped us demonstrate the movability of the drilling rig to the court, which was a major issue that could preclude insurance coverage for the entire event. We used this witness to help establish facts that were helpful to our coverage case, even though he wasn’t too helpful on the contract issue. In short, determine whether the surprise witness can provide “vanilla” facts—those that seem or are truly innocuous as far as the witness is concerned, but those that may help your case in the end.
Finally, remember the points you need to score. You cannot always prevent surprise testimony from coming out and you may not be able to anticipate everything. But you can nail down facts that are well within this person’s knowledge or, conversely, rule them out. You can also get them to agree that they never surfaced before trial. This last point is risky—you certainly don’t want to highlight the fact that you did not depose this witness (or worse!). But if this witness failed to come forward earlier or has other baggage, that’s certainly proper fodder for cross-examination. Regardless, get in and get out, score your points, and try to minimize damage.
If and when you get to call your own surprise witness, the fun can really begin. You should know what this witness can and will say on the stand, both on direct and cross examination. Usually you can minimize your opponent’s efforts on redirect by asking whether anything said in cross changes their original testimony (spoiler alert: It should not).
Remember to keep your cool and stick to the facts you need to prove.
