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I have a court case coming up in Maryland District Court. It is a landlord-tenant dispute; we are pro se plaintiffs and the defendants (husband and wife, both landlords to the house I lived at) will be represented by an attorney. There is another plaintiff in addition to myself, my former roommate.

The co-plaintiff and I would like to use direct and cross examination, however we are a bit confused on how to proceed.

Can we call the defendants as witnesses so we may cross examine them during the case in chief? Would we call the defendant as a witness before the case begins? Is doing this known as "compelling testimony" and is this even allowed if the defendants have a lawyer?

Can I direct examine my co-plaintiff?

I have read online it could be advantageous to perform the cross examination before the direct examination. Is this allowed? If so, does this mean I can ask the defendant questions before I ask the co-plaintiff questions?

I understand there are multiple sets of rules in regards to civil procedure, such as federal, state and even local.

  • About your case, could you clarify what you mean by "coming up"? at what stage is your lawsuit? are you sure, based on the amount involved, your case would not have to be litigated in the Small Claims court? – Iñaki Viggers Oct 22 '18 at 15:11
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    Is there absolutely no way to convince you to at least consult a lawyer on these questions, if not just hire one to handle this for you? People in court pro se are already at such a disadvantage and judging by the questions you've posted above, I'd be concerned this will turn out as a massive waste of time for you at best, and a significant money drain at worst. I mean no offense by that; those are legit questions for non-lawyers to have. And again, that's why you're advised not to do this without a loser – A.fm. Oct 22 '18 at 15:58
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    Unfortunately it wouldn't be cost effective for us to hire a lawyer and the filing fees were pretty cheap. I have chatted with a few lawyers and hammered out the facts of the case, the general consensus is we do have a decent case. I have been to trial a few times (and been burned) and have learned from my mistakes. I feel we would be at a significant disadvantage if we didn't do any type of examination. I'm sure the judge will guide us somewhat, but I know judges are limited to what advice they can provide if any. I just want some general guidance on the examination process. Thank you – coffee guy Oct 22 '18 at 16:12
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    You say it's a small claims case. In at least one state, Minnesota, defendants must testify if the plaintiff questions them. And vice-versa. – Michael Hardy Oct 22 '18 at 16:40
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    What are you hoping to establish by examining your landlord as a witness? Perhaps you can establish that without examining your landlord as a witness. – phoog Oct 22 '18 at 18:40
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Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case.

If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary).

Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case.

Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts.

The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post.

  • I should have had the clerk issue a subpoena to both defendants to appear at the trial. The wife did not appear, only the husband. Questioning her was essential to proving our case. – coffee guy Jan 28 at 15:20
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I don't know the rules in Maryland, but generally speaking, a plaintiff may call the defendant as a witness, and vice versa. The fact that either side has lawyers has no bearing on this. Further, each side is generally permitted to choose the order in which it calls witnesses, so a plaintiff could call the defendant and then take the stand himself.

Note, though, that as a matter of trial strategy, this is generally considered a bad idea. You can read one discussion of this approach here.

In a pro se situation, I would imagine that a court would allow co-plaintiffs to examine each other, though I can also see reasons why it might require them to each testify independently -- primarily because neither is a lawyer and either one could unwittingly prejudice the others' rights.

  • The beginning of that article may have cleared up some things for me, although correct me if I'm wrong. If I call the defendant, regardless of order, and question them during my case in chief, it would be considered a direct examination of the defendant, not a cross examination? I was under the impression a direct examination only applies to witnesses for the plaintiff. – coffee guy Oct 22 '18 at 18:39
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    Direct examination is for witnesses you and your co-parties call, regardless of whether you're the plaintiff or defendant. Cross examination is is for witnesses your opposing party calls, regardless of whether you're the plaintiff or defendant. If the witness is aligned with an opposing party, it would normally be treated as a cross examination, even if it is technically a direct. – bdb484 Oct 22 '18 at 18:55
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    Calling the Defendant as a witness, often as a first witness is a case, is a quite common and desirable trial strategy. As I lawyer, I probably do so in about 50% of the trials that I litigate. The key is to combine that with only asking questions you know the answer to and want to get from that witness. – ohwilleke Oct 22 '18 at 23:37
  • Yikes! That is ballsy and I love it. Not as bad when you've get a depo transcript in hand, obviously, but I'd still be wary of letting the defendant be the first person to tell my story. – bdb484 Oct 23 '18 at 2:19
  • I wanted to give a special thanks to you bdb484 for your definition of the terms in your first comment to your answer. You provide a much clearer explanation of the terms than many other online resources! – coffee guy Jan 28 at 15:12
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Can a pro se plaintiff call the defendant as a witness and compel testimony in a civil suit?

Apparently not. Md Rule 3-701(e) prohibits any "pretrial discovery". So does Md 3-711, the "special rules" for landlord-tenant cases. And footnote 7 of Mostofi v. Midland Funding, 117 A.3d 639; 223 Md.App. 687(2015), although as obiter dictum, specifically indicates that it would not be possible to compel the defendant's agent to submit to cross-examination. It is still unclear whether that would apply to the defendants themselves.

I have not gone through all the 38 results of this query to see what other information might be useful/applicable to your situation.

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    Are you saying that the prohibition against pretrial discovery implies that the opposing party cannot be called as a witness? – phoog Oct 22 '18 at 18:29
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    Right? The rules for pre-trial don't usually apply to trials, at least in my experience. – bdb484 Oct 22 '18 at 18:31
  • @phoog Not sure. I wouldn't have thought so, but based on Mostofi at 641 and footnote 7, I gather that it is (at most) under the court's discretion whether or not to allow the plaintiff cross-examine a witness. See how the footnote reads: "a small claims proceeding to which the rules of evidence do not apply, Md. Rule 3-701". I was surprised to learn this, since the rule only mentions pretrial. Maybe other cases would shed more light. – Iñaki Viggers Oct 22 '18 at 18:37
  • No. First, it has nothing to do with the defendant's "agent." Rather, it discusses the defendant's "affiant." An affiant someone who swears to an affidavit. Often, they do this in lieu of showing up to be actual in-court testimonial witnesses. The guy in this case was claiming it was unfair that he did not get to cross-examine the people who signed affidavits agreeing with the opposing party. – A.fm. Oct 22 '18 at 18:54
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    @bdb484 Yes, mixing paranoia with delusion is a scary cocktail. Inaki, no, it's the same thing. There are bad actors in every area of life, every sector of employment, every sport at the Olympics, and elsewhere. If you encountered one, I'm sorry that happened, but the stuff you're saying here is both inaccurate and, were somebody to heed your advice, potentially dangerous to others. – A.fm. Oct 23 '18 at 21:07
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No. In fact, if they so choose, the defendants may not even testify at all, which will leave you out of a cross-examination. To do otherwise is the very definition of compelled testimony and would not be allowed.

The procedure is that the plaintiff goes first and gets to call all their witness, experts, and present evidence. Each witness is given a direct examination by you and then a cross examination by the defense (and then a re-direct and a re-cross). After the prosection is done, then the defense can petition the judge to drop the case (it rarely happens, but it does occur... as the burden is not on the defense, if you don't sufficiently prove your case, then there's no need for the defense to go at all). The actual people who are charged do not need to testify and their whole case doesn't even need to present evidence to refute you.

  • So, if I understand correctly, you are saying the defendants must choose to testify (in my case I know they will not, I am sure of it) for there to be a cross examination. This is the source of my confusion. Let's say I call the defendant as a witness (I'm assuming I can do this), can I not ask them questions? Doesn't the right to refuse testimony only apply to criminal cases? – coffee guy Oct 22 '18 at 16:20
  • @coffeeguy: Yes, the defense does not need to prove a damn thing beyond you did not meet the burden of proof in your accusation. In fact, if this is a jury trial, the jury will explicitly be told that they cannot use the lack of the defendant's testimony as a reason to find against him. – hszmv Oct 22 '18 at 16:22
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    Your answer would be correct for a criminal case, but this is not a criminal case. – phoog Oct 22 '18 at 16:52
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    I think @phoog is talking about the plaintiff's right to compel the defendant to testify, not about who bears the burden of proof, but you are mistaken on both points. – bdb484 Oct 22 '18 at 18:14
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    This is not true in a civil case. The privilege not to testify as a defendant is limited to criminal cases. – ohwilleke Oct 22 '18 at 23:39

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