Section 8.8 General Observations (New Section)

• Library: Civil Trial Practice 2015 Supp

VII. (§8.8) General Observations (New Section)

2014 SUPPLEMENT (§8.8)

As pointed out in the original chapter, the timing and manner in which an opening statement is presented can affect the procedure under which a trial is commenced and can result in the admissibility of evidence that would otherwise be inadmissible in retaliation for comments and references made during the opening statement. For example, if one wishes to invoke “the rule” that all witnesses are to be sequestered during the course of the trial, a failure to make a request to that extent before the opening statement results in a waiver of the right to invoke “the rule.” Grab ex rel. Grab v. Dillon, 103 S.W.3d 228 (Mo. App. E.D. 2003). Thus, the failure to make a record relating to the sequestration of witnesses before an opening statement changes the entire procedure or process under which a trial will be commenced and concluded. In Grab, it resulted in the defendant’s experts being allowed to sit in and listen to the testimony during the trial.

In Gingerich v. Kline, 75 S.W.3d 776 (Mo. App. W.D. 2002),
an obstetrical malpractice case involving...