SURREBUTTAL SURVIVES

April 28, 2011 § Leave a comment

Not long ago an attorney asked to be allowed surrebuttal.  I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.

I was wrong.  About the MRCP, anyway.

Actually, the MRCP does not even mention surrebuttal.  I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules.  The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away.  In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.

After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.

The matter is covered by UCCR 3.02, which provides in part:

 The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.

There you have it.  It’s what we used to call surrebuttal.

Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.”  In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”

It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief.  Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988).  But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious.  Smith at 1095.

After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.

To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief.  If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.

In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.

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