Order of Trial - In General
The trial court has the authority to determine the sequence of the issues tried and to regulate the conduct of the trial.[1]
“No rule for the conduct of trials is more familiar than that a plaintiff must put in all his evidence before he rests. He must exhaust all of his testimony in support of the issue on his side before the proof of his adversary is heard. The defendant should then produce his evidence, and finally, the evidence in rebuttal is received.”[2]
The party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[3]
Plaintiff cannot put in merely enough evidence to make out a prima facie case and reserve the rest of his evidence for later needs. He has no right to reopen his case after the defendant has closed his case, although he may introduce proof in rebuttal. He may not, however, under the guise of rebuttal put in evidence tending to support the allegations of his pleading. Notwithstanding this general rule, the trial court, in the exercise of its discretion and for good cause, may allow a departure from the rule and permit a party to reopen his case and supply defects in the evidence which have inadvertently occurred.[4]
The defendant is not required to prove his case until the plaintiff rests. It is reversible error to compel him to do so. [5]
[1] Civil Practice Law and Rules 4011.
[2] Marshall v. Davies, 78 N. Y. 414; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[3] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889. (A party holding the affirmative of an issue is bound to present all of his evidence before he closes his proof.)
[4] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[5] In Roberts v. St. Francis Hosp., 96 A.D.2d 272, 275, 470 N.Y.S.2d 716, 719 (3d Dept., 1983) the Appellate Division held that the trial court committed reversible error in striking defendant's answer after she refused to proceed with her case pending the appearance of the plaintiff’s final witness. It observed that the speedy disposition of cases should not take precedence over the substantial rights of the litigants. Here, the trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff's evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case (CPLR 3212). She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. The Appellate Division held that defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
The trial court has the authority to determine the sequence of the issues tried and to regulate the conduct of the trial.[1]
“No rule for the conduct of trials is more familiar than that a plaintiff must put in all his evidence before he rests. He must exhaust all of his testimony in support of the issue on his side before the proof of his adversary is heard. The defendant should then produce his evidence, and finally, the evidence in rebuttal is received.”[2]
The party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[3]
Plaintiff cannot put in merely enough evidence to make out a prima facie case and reserve the rest of his evidence for later needs. He has no right to reopen his case after the defendant has closed his case, although he may introduce proof in rebuttal. He may not, however, under the guise of rebuttal put in evidence tending to support the allegations of his pleading. Notwithstanding this general rule, the trial court, in the exercise of its discretion and for good cause, may allow a departure from the rule and permit a party to reopen his case and supply defects in the evidence which have inadvertently occurred.[4]
The defendant is not required to prove his case until the plaintiff rests. It is reversible error to compel him to do so. [5]
[1] Civil Practice Law and Rules 4011.
[2] Marshall v. Davies, 78 N. Y. 414; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[3] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889. (A party holding the affirmative of an issue is bound to present all of his evidence before he closes his proof.)
[4] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[5] In Roberts v. St. Francis Hosp., 96 A.D.2d 272, 275, 470 N.Y.S.2d 716, 719 (3d Dept., 1983) the Appellate Division held that the trial court committed reversible error in striking defendant's answer after she refused to proceed with her case pending the appearance of the plaintiff’s final witness. It observed that the speedy disposition of cases should not take precedence over the substantial rights of the litigants. Here, the trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff's evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case (CPLR 3212). She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. The Appellate Division held that defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:divorce@ix.netcom.com. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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