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The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011
“It’s MY Turn (Again)!”
What Is Proper Rebuttal
Evidence In Virginia?
Y
Rebuttal is a privilege which is limited to refutation of defendant’s evidence by the plaintiff after
completion of defendant’s case (and, of course,
after any motion to strike has been overruled).1
The sole purpose of rebuttal evidence is to allow
the plaintiff to reply to the defendant’s case.2
The evidence must concern matters which were
addressed for the first time in the defendant’s casein-chief; otherwise, it is not proper for rebuttal.3
Whether evidence will be admitted in rebuttal lies
within the “sound discretion of the trial court.”4
If evidence offered in rebuttal is presented solely
to bolster the offering party’s case, and provides
nothing new, it is not proper rebuttal and may be
excluded.5 However, as with any matter that is
within the discretion of the trial court, evidence
may be admitted as rebuttal evidence by the trial
judge even if that evidence might have actually
A. Plaintiff Can’t Tell His Story Twice.
While the subject of rebuttal evidence seems
simple, its practical application is not always so.
Upon completion of the defendant’s case-in-chief,
the plaintiff is entitled to rebut the defendant’s
evidence by introducing additional evidence to
refute matters raised by defendant.8 However,
such evidence must be offered to prove a new or
omitted fact and not solely to reiterate evidence already provided.9 Ideally, rebuttal evidence should
consist of nothing that could have been offered
in the plaintiff’s case in chief, since evidence that
responds to an expected and anticipated portion of
the opponent’s case is not proper rebuttal.10 Therefore, a plaintiff is not well served by holding back
a “surprise” witness, believing that witness will
redeem the plaintiff’s case after the defense rests.
It is tempting to hold certain witnesses or testimony in abeyance until after the opposition’s case
is presented; however, that temptation should be
resisted since contradicting an expected portion of
the opponent’s case in chief is not rebuttal,11 and
if the “hold back” evidence is not true rebuttal,
it may never be heard. And, as the form Uniform
Pretrial Scheduling Order, set forth in the Supreme
Court Rules, makes clear, there are deadlines associated with identifying one’s trial exhibits and
witnesses. The Pretrial Scheduling Order notes
that any exhibit or witness not so identified will be
excluded, “except in rebuttal ....” This mandate, of
course, does not help to define rebuttal, but does
emphasize the fact that if evidence is not deemed
rebuttal, it may not be admitted.
When considering whether evidence is true
rebuttal evidence, it is key to remember that rebut-
6.
1.
2.
3.
4.
5.
Friend, Charles E., The Law of Evidence in Virginia,
§1-4 (e) (6th Ed. 1996).
Id.
Wilson v. Wooldrich, 118 Va. 209, 86 S.E. 872, 873
(1915).
Henning v. Thomas, 235 Va. 181, 366 S.E.2d 109
(1988).
See Good v. GAF Corp., 875 F.2d 315 (4th Cir. 1989).
Id.; see Henning v. Thomas, 235 Va. at 113, 366
S.E.2d at 189.
7. Foley v. Commonwealth, 8 Va. App. 149, 165,
379 S.E. 2d 915, 924 (1989).
8.
9.
Friend, The Law of Evidence at § 1-4 (e), supra.
Wilson v. Wooldrich, 118 Va. 209, 86 S.E. 873
(1915).
10. Id., at § 1-4 (e).
11. Id.
Proper Rebuttal
What is rebuttal?
How do I know whether my evidence will
be considered rebuttal?
by Mahlon G. Funk, Jr., Jacqueline C. Hedblom
and Franklin R. Cragle, III
ou rested your case. You endured the
defense’s litany of witnesses, who tried
every conceivable way to turn your theory of the case on its head, and made
some assertions that were just plain wrong. Not
to worry, you’re ready: once the defense rests and
motions are argued, you have a full slate of witnesses ready to make the defense’s case crumble.
The defense, however, is also ready, and halfway
through your first rebuttal witness, defense counsel
objects to your witness’s testimony on the grounds
that you asked the same questions in direct examination during your case in chief. So what, you
think. This is rebuttal. But the Judge seems to be
entertaining the objection! Will the defense objection be sustained? And what about other evidence
by additional witnesses? Isn’t any evidence which
counters the opposing party’s evidence considered
rebuttal?
While the law on rebuttal evidence may be
simply stated, its practical application is anything
but. This article examines the definition and scope
of rebuttal evidence, and explores the nuances of
its use.
been more appropriate for introduction during the
offering party’s case-in-chief.6 Indeed, it has been
held that a witness could be recalled to the stand
in rebuttal, be asked the same questions previously
asked on direct, and provide essentially the same
testimony given originally.7 The question practitioners must consider is, Can I afford to take the
risk that my evidence offered in rebuttal will be
excluded?
8 The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011
tal is not intended to give a party an opportunity
to tell his or her story twice.12 This concept comes
as a surprise to many plaintiff’s lawyers who like
to make the most of having the “last word,” and
may seek to introduce additional witnesses and/
or testimony during rebuttal which they believe
will buttress the case, returning it to (or keeping it
on) solid footing and ensuring a favorable verdict
for the plaintiff. The fact is, however, that rebuttal
evidence cannot be used to corroborate, further develop, or repeat the plaintiff’s case-in-chief - and
if that is the sole purpose for the evidence, it will
likely be excluded.13 For example, it is not proper
rebuttal for the plaintiff to call a witness, either
expert or lay, who is cumulative of prior testimony
in the plaintiff’s case-in-chief, even if a defense
witness testified to a contrary fact or opinion.
While one trial judge may permit such “rebuttal”
testimony in the exercise of discretion, another
trial judge may refuse to permit such testimony.
Therefore, the best practice is to take no chances,
and introduce all pertinent evidence in plaintiff’s
case-in-chief so as to avoid the potential loss of
a witness and testimony that otherwise may have
been persuasive.
B. Admissibility In Case-In-Chief Is Not The
Only Test.
In the same vein, however, evidence that would
otherwise constitute rebuttal evidence is not rendered improper simply because it could have been
admitted in the case-in-chief.14 If a good argument
can be made that it responds to an unexpected
portion of the opponent’s case in chief, and it
does more than simply bolster earlier evidence,
it is proper rebuttal and should be admitted. In
that case, the mere fact that the rebuttal might be
somewhat repetitive of testimony or issues addressed during the case-in-chief does not preclude
its admissibility.15
C. Practice Points
(1) A Hypothetical
To illuminate the application of the
rather nebulous rebuttal parameters,
consider the following hypothetical:
in a medical malpractice case against
a radiologist who failed to properly
read a CT scan and therefore failed
to detect plaintiff’s cancer, resulting in her death, plaintiff’s experts
include a radiologist, who will testify
12. Id.
13. Wilson, 118 Va. 209, 86 S.E. at 873; see Am.Jur.2d,
Trial § 291.
14. Norfolk & A. Terminal Co. v. Morris’ Adm’x, 101 Va.
422, 44 S.E. 719, 720 (1903).
15. Foley, 8 Va. App. at 165, 379 S.E. 2d at 924; see
Am.Jur.2d, Trial §292.
regarding the standard of care, and an
oncologist, who will testify regarding causation. Specifically, plaintiff’s
clinical oncology expert will provide
evidence related to the type and stage
of decedent’s cancer, advancements in
available cancer treatments and their
success in treating the specific type
and stage of cancer, and will opine
that if the decedent’s cancer had been
detected at the time the CT scan was
taken and read, decedent would, to a
reasonable degree of medical probability, have survived and lived a normal
life expectancy.
Defendant also identifies two
experts – a radiologist, whose standard of care testimony will rebut that
of plaintiff’s radiologist, and, as to
causation, a doctor who, although an
“M.D.,” works as a full-time medical
researcher. That researcher will testify
that his studies in the development of
cancer reveal that decedent’s particular
type of cancer would not have been
susceptible to current cancer treatments, even if detected at the time of
the reading of the CT scan.
Plaintiff then identifies his rebuttal
expert whose qualifications basically
mirror those of defendant’s research
physician. Plaintiff’s research doctor
will contradict the testimony of defendant’s research doctor. This is proper
rebuttal.
Now assume, however, that defendant’s causation expert is instead
a clinical oncologist. Like plaintiff’s
causation expert, defendant’s oncologist will testify regarding decedent’s
cancer and current cancer treatments,
but his expert opinion, to reasonable
degree of medical probability, is that
the outcome for the decedent would
have been the same regardless of
whether the cancer had been detected
on the CT scan. In that case, plaintiff
should not be permitted to call an
expert to rebut that testimony unless,
of course, the scope of the testimony
of defendant’s oncologist exceeds that
of plaintiff’s oncologist, in which case
rebuttal evidence should be permitted
on the additional subjects.
(2) Brugh v. Jones
The Supreme Court of Virginia,
in Brugh v. Jones, reversed a trial
court’s refusal to allow evidence
The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011
16.
17.
18.
19.
which the Court held on appeal to
have been proper rebuttal evidence.16
The case arose out of an automobile
accident which resulted in injuries
to the plaintiff and after which the
defendant abruptly left the scene of the
accident. Plaintiff ultimately admitted
liability and the case went to trial on
the sole issue of damages. At trial, the
defendant introduced photographs of
his vehicle showing no damage to the
front of the vehicle, and testified that
the vehicle had not been repaired in
those photographs.
In response, plaintiff sought to
introduce, on cross-examination and
again in rebuttal, evidence that the
defendant abruptly left the scene of
the accident and that he worked in an
automobile body repair shop. The trial
court refused to permit the introduction of such evidence for impeachment
on cross-examination and in rebuttal.
The Brugh Court reversed the trial
court’s ruling and held that, under the
specific circumstances of the case, the
trial court had abused its discretion by
ruling that, as a matter of law, evidence of defendant’s abrupt departure
from the scene of the accident was
inadmissible.17 With regard to the permissibility of the evidence in rebuttal,
the Court held that “the evidence was
[ ] probative on rebuttal because the
condition of Jones’ vehicle had been
placed into issue by his photographic
evidence and his testimony.”18
One distinguishing point about
which the discerning practitioner may
want to make note is the Court’s additional instruction to the trial court on
remand that the trial court “must apply
a balancing test to determine whether
the probative value of the evidence
outweighs its prejudicial effect.”19
Thus, despite the ability to rely on the
Brugh ruling to convince a trial judge
that evidence sought to be admitted is
proper in rebuttal, plaintiffs’ counsel
would be well advised to also come
to trial with a ready argument for why
the evidence is more probative than
prejudicial.
Brugh v. Jones, 265 Va. 136, 574 S.E.2d 282 (2003).
Id. at 140, 284.
Id.
Id. at 140, 284-5.
Am I entitled to surrebuttal (or rejoinder)?
As a general rule, a party does not have the
right to reply to evidence given on rebuttal or
introduce evidence in surrebuttal or rejoinder
unless new matter was introduced in the case for
the first time on rebuttal.20 However, surrebuttal,
like any rebuttal, is within the sound discretion of
the trial court.21 Thus, the key to being afforded
the opportunity of surrebuttal is the ability of the
proponent to persuasively articulate to the trial
court the reason why the matter to which the surrebuttal seeks to respond is, indeed, new evidence
introduced for the first time in the opponent’s
rebuttal – and thus arguably, but not necessarily,
beyond pure rebuttal. Failure to do so succinctly
and persuasively will likely result in swift denial
since surrebuttal, unlike rebuttal, is not a right and
is generally frowned upon, if not viewed with outright hostility, by the trial bench. In other words,
the proponent of surrebuttal is best advised to appreciate upfront that he or she is likely swimming
against a current that will require a strong stroke
in order to prevail.
Appeal
As noted above, rebuttal is a right and surrebuttal is not. Beyond that premise, however, lies
a great deal of misunderstanding and murkiness
which the cases and treatises almost uniformly refer to as the “sound discretion of the trial court.”22
As every trial attorney knows well, abuse of this
discretion is a virtually impossible standard to
overcome on appeal. Therefore, appellate decisions on rebuttal are relatively scarce and those
resulting in reversal are scarcer yet. Accordingly,
the trial lawyer is well advised to avoid putting
himself or herself in the position where rebuttal evidence is denied due to “sandbagging” or
“hip-pocketing,” or even due solely to one’s wellintentioned efforts to streamline his or her case-inchief. It is also imperative that one avoid having
rebuttal evidence refused due to inarticulate and
unpersuasive presentation of the basic fairness
and rationale for such in the circumstances, for
it is much more likely than not that such rebuttal
evidence, and its probity and persuasive value in
the case, will be lost forevermore if not admitted
at trial.
20. Am. Jur. 2d, Trial §294.
21. Friend, The Law of Evidence, at n.27, supra.
22. Henning v. Thomas, 235 Va. 181, 366 S.E.2d 109
(1988).
9
10 Mahlon G. “Bud”
Funk is a trial attorney
with Hirschler Fleischer in Richmond. He
currently heads up
the firm’s specialized
Catastrophic Injury
Practice Group that
handles catastrophic
and complex injury
and death cases for
plaintiffs – including
traumatic brain injury,
medical malpractice,
defective product injury, wrongful death and
transportation/highway
injury. He received a
J.D. from the MarshallWythe School of Law at
the College of William
& Mary, M.A. from the
University of Dayton,
M.S. from Virginia
Polytechnic Institute
and State University,
and B.S. from Virginia
Polytechnic Institute
and State University.
The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011
Jacqueline C. Hedblom
is an associate in the
litigation section of
Hirschler Fleischer
in Richmond, where
she handles primarily
personal injury, medical
and professional malpractice and wrongful
death cases. Prior to
law school, she served
as a child advocate
with the Chesterfield
Court Appointed Special
Advocates (“CASA”)
program, where she advocated in court on behalf of abused children,
and was recognized by
the Virginia General
Assembly for her service
to children. As Miss
Virginia 2000, she traveled the Commonwealth
speaking to organizations about a wide variety of topics, including
the CASA program. She
currently serves as Vice
President of the Chesterfield CASA Board of
Directors. Ms. Hedblom
is a graduate of James
Madison University and
the University of Richmond School of Law.
Franklin R. Cragle III
is an associate in the
litigation section of
Hirschler Fleischer in
Richmond, where he
works on a range of
civil and commercial
disputes, including
construction matters,
landlord-tenant issues,
and bankruptcy cases.
While in law school, he
was a member of the
McNeill Honor Society
and served on the Law
Review and as a Justice
of the Honor Council.
He was president of his
undergraduate student body. Mr. Cragle
graduated summa cum
laude from the University of Richmond
School of Law and
magna cum laude from
York College of Pennsylvania.
Additional resources
Additional
Resources
VTLA materials, available for members at
www.vtla.com
• “Rebuttal Closings,” featuring cases with
Bruce D. Rasmussen, Charles J. Zauzig,
Thomas W. Williamson,
2001 VTLA Masters of Advocacy Seminar