Section 9.23 Failure to Call a Witness and Adverse Inferences

• Library: Civil Trial Practice 2015 Supp

4. (§9.23) Failure to Call a Witness and Adverse Inferences

One very important consideration for the trial attorney in determining which witnesses to call at trial is the matter of the adverse inference. Counsel cannot always elect to call only the entirely favorable witnesses because, in some situations, the court will permit opposing counsel to argue to the jury that, because the witness was not called, it may be inferred that the testimony of the witness would be unfavorable to the party who failed to call the witness.

This problem often arises when a trial attorney who represents a business concern fails to call one of the company’s employees as a witness. In these situations, the trial court’s determination as to whether the argument of an adverse inference will be permitted turns on the question of whether the witness is equally...