Witness Disclosures

I am about to start a series of articles on various aspects of discovery. Some of it is to refresh myself on various things, some of it is to serve as a warning. A few years ago, I got involved in a case post trial.  One of the issues was the exclusion of several witnesses at trial.  The attorney’s had complied with Rule 26 of the Mississippi Rules of Civil Procedure and had disclosed the name, address, telephone number, and had even went further and disclosed generally what the witnesses were expected to testify at trial about.  At trial, the chancellor took the position that anything not disclosed in the witness disclosures, the witnesses would not be allowed to testify about.  This happened in the middle of trial apparently after one witness started testifying about the opposing party making death threats.  The party offering the witness took the position they had complied with everything Rule 26 required and the opposing party should have talked to the witness before trial.  The party opposing the witness stated they had asked for the sum and substance of the witness testimony and that it was “trial by ambush” not to provide it.  Ultimately, the chancellor’s ruling was affirmed on appeal as not an abuse of discretion.  To me and several other attorney’s who looked at the issue, the party offering the witness seemed to do everything required of them and I know several attorneys who still adopt this position in disclosure of witnesses.  To be safe, I now threat lay witnesses almost the same as expert witnesses that I previously discussed here.  I tend to disclose everything I intend to have the witness testify about.  The thing to remember is that a witness has never been excluded when too much information regarding their testimony has been disclosed to the opposing party.