Does it Matter Who Goes First

R. Peter Decato, Decato Law FirmWritten by Peter Decato, Esquire

Consider a situation where a person files for divorce. The non-filing spouse then files a counterclaim for divorce and a motion to dismiss the filing spouse’s petition for divorce – for technical reasons. The court grants the motion to dismiss.

As a result, the case is going forward on the counterclaim instead of on the original petition for divorce. Does it matter? I say it does matter because the party who originated the divorce, doesn’t get to introduce evidence first.

That privilege belongs to the spouse who filed the counterclaim. As the hearing unfolds, the originating spouse will be cross examining their spouse’s witnesses instead of calling their own witnesses and doing a direct examination. When cross examining, the originating spouse will try to undermine his/her opponent’s case. He/she will try to neutralize the evidence and will try to get evidence from nonsupporting witnesses that actually supports his/her side.

What topics will be raised on cross examination? What chronologies are important to the case?

If the motion to dismiss had not been granted, the originating spouse would have been able to put witnesses on and would have been able – in the first instance – to do a direct
examination of witnesses instead of a cross examination of his/her opponent’s witnesses.

Putting on evidence first permits you to make a first impression. As we know, first impressions count. Sometimes, first impressions count a lot.

Now let me confuse the situation.

There are concepts called primacy and recency. The first item to be discussed is very important in any discussion as there is an effect called the primacy effect that transfers this information to long-term memory by the time of recall. Items at the end of a list of topics to be discussed are still in short-term memory – the recency effect – at
the time of recall. Which would you prefer – long-term memory or short-term memory? I guess the answer is “it depends.”

I view the trial to be like table tennis. The person with the initial burden of producing evidence tries to hit the ball deep into the corner on the opposite side of the net. The job of the
opponent is to hit the ball back toward the net. It doesn’t need to go way back into the other side’s area, but it needs to get back to the net.

Neutralize, neutralize, neutralize.

If that occurs, when it is time for the party putting on evidence last, they then smash the ball over the net, deep into the other side’s area. Let’s see if they can hit the ball back. If they can’t, then the concept of recency takes over. That is especially so, if the last blow knocks it deep into the other party’s territory.

It helps to contrast disputed from undisputed facts. Spend most, but not all of your time on disputed facts because that’s where the action is.

Nevertheless, don’t miss an opportunity to get your opponent to say helpful things about your case, whether the fact is in dispute or not. It always help when your opponent concedes things, not matter how trivial those things might be.