Experienced lawyers seek every advantage at trial. Your adversary fails to lay the proper foundation for a document’s admission into evidence? Object and seeks its preclusion. A witness is first disclosed on the evidence of trial? Move to bar the witness from testifying at trial.
The “adverse inference” or “missing witness” charge is another potent weapon at trial. Requested when an adversary fails to call a witness under his control, this charge advises the jury that it may infer that the testimony of the missing witness would have been adverse to that party’s interests. In a close case, it can be used to highlight your adversary’s failure to call a key witness under its control and drive home the point that the missing witness’ testimony would likely not have helped your opponent’s case.
Under what circumstances should an “adverse inference” charge be given when a party fails to call an expert witness at trial? Just how far may an attorney go in summation when urging the jury to consider the failure of an adversary to call an expert witness at trial?
In Washington v. Perez, the New Jersey Appellate Division gave some guidance on both questions. In Perez, the plaintiff was injured in a bus accident and there were questions about the impact of a prior injury on plaintiff’s present condition and just how badly she was hurt in the bus accident. The defense identified two medical experts during discovery, presumably one who examined plaintiff and the other who read the scans and x rays. For reasons never explained, the defense lawyer took an aggressive position in his opening, boldly declaring that the plaintiff was not injured in the bus accident. However, he did not call either medical expert and offered no evidence on plaintiff’s alleged lack of injury.
The plaintiff’s attorney requested and the court gave an “adverse inference” charge based on the defense’s failure to call either of its medical experts. Seizing the moment, plaintiff initially highlighted in his summation the defense’s failure to call either of its medical experts to dispute plaintiff’s medical evidence. Not content with an adverse inference charge, plaintiff also challenged the “candor” of the defense and argued that it “hid evidence from [the jury]…” This tactic was apparently effective because the jury awarded $500,00 for pain and suffering and $242,000 for economic damages in a case involving soft tissue injury.
The Appellate Division was critical of the trial court’s application of the “missing witness” charge and troubled about the content of plaintiff’s summation. Given those cumulative errors, the Appellate Division reversed and remanded for a new trial. Sometimes, attorneys are not content to accept their good fortune — in this case, that the court gave an “adverse inference” charge– and stretch the bounds of fair comment. While it remains a powerful weapon, advocates must recognize the limitations of an “adverse witness” charge and avoid undermining their good work by going too far in their advocacy.
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