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Requesting “The Rule” – good idea or not?

A personal injury lawyer Little Rock, AR trusts will tell you that witnesses can be the most powerful tool to prove the elements of your case.  Rule 615 of the Federal Rules of Evidence allows a party to request that witnesses be excluded from the courtroom so that they cannot hear the testimony of other witnesses.  The court can also make this request on its own.

There are some exceptions to The Rule: (1) a party can remain in the courtroom, (2) a representative of a party that is a corporation can remain in the courtroom, and (3) a person whose presence is shown to be essential to proving a claim or defense can also remain in the courtroom.  In addition, if a statute authorizes a person to remain in the courtroom, they may do so.  Experts may generally remain in the courtroom under the third subpart of the rule referenced above (although not automatically – this will be covered in next week’s blog).

FRE 615: 

But…is it a good idea to request The Rule?  Almost always, yes.  Most of the time, you will have no choice since the other side will routinely request The Rule.  If the other side is representing themselves Pro Se, and they have no witnesses, you might consider as a strategy to refrain from requesting The Rule.

Even if a witness has no intentions of doing so, remaining in the courtroom and hearing the testimony from other parties can affect their own testimony.  The trier of fact, whether it is a judge or a jury, should be afforded the opportunity to hear testimony from witnesses based on their own recollections and observations.

Using The Rule to your advantage: 

As stated above, parties can remain in the courtroom during all testimony.  While it is possible for a party to modify their testimony based on the testimony of another witness, the party can be impeached as to this issue on cross-examination.  “Isn’t it true that you have remained in the courtroom during the entirety of these proceedings?”  And “isn’t it true that you have crafted your testimony to mirror the testimony that you heard from Jane Doe rather than from your own recollections and observations?”  Of course, the party will deny this accusation, but the seed has been planted with the jury.  They can determine for themselves whether the party is testifying truthfully.

Courtroom Strategy: 

You can also use The Rule to your advantage when calling your client or expert to the stand by summarizing previous testimony with them.  To the contrary, if a witness who has remained outside the courtroom testifies in a manner inconsistent with a previous witness, impeaching them on the inconsistency can be a powerful tool in the presence of the jury, who of course heard and can recall the inconsistency from the previous witness.

For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer in regard to courtroom strategy.