The Use of Rebuttal Witnesses
Rebuttal witnesses are very common in civil litigation. At the conclusion of the defendant’s case, the plaintiff may choose to call rebuttal witnesses for the purpose of rebutting something that was brought up anew during the defendant’s case.
Rebuttal is an excellent opportunity to attempt to buttress the plaintiff’s case. Technically, however, the purpose of rebuttal is not to buttress what has already been said but rather to rebut something that was brought up anew or that was unexpected during the defendant’s case.
Most Judges, however, do not impose such a strict limitation on the use of rebuttal but rather allow plaintiff’s counsel a fairly broad reign in terms of rebutting virtually anything that was addressed during the defendant’s case even though it may have already been addressed once in the plaintiff’s case.
In one reported case a Trial Court refused to allow any rebuttal witnesses because they had not been identified in response to Interrogatories during the course of discovery in the case.
As a general rule, the extent to which a Trial Judge allows rebuttal testimony is within the sound discretion of that Judge. What that means is that it is unlikely that the Judge’s decision on that issue is going to be reversed by an Appellate Court unless it is determined by the Appellate Court that the Trial Judge abused his/her discretion.
In one reported case a plaintiff endeavored to call a witness for rebuttal when the witness had previously testified as an adverse witness for the plaintiff and also as a witness for the defendant. The Trial Court did not abuse its discretion in not allowing this to happen.