This is the third post in the Jogani series.  Besides the significant assets at issue, the primary area of interest is a partnership was proven without a written partnership agreement.  Plaintiffs instead had to attempt to prove the partnership by relying on admissions and consistent evidence in the surrounding record.

Based on the appellate opinion, one of the effective strategies employed at trial was calling ten third-party witnesses before the primary Plaintiff ever took the stand.  The defense challenged that approach on appeal.  The challenge failed.

THE ISSUE

The issue involves the admissibility of prior consistent statements.  Before the Plaintiff, Shashi testified at trial, ten third-party witnesses took the stand.  Each testified that Shashi had told them of the partnership.  Only after those ten witnesses completed their testimony did Shashi testify.  He testified consistently with what they had said and expanded on it in detail.

Defendants challenged the testimony of the ten third-party witnesses as hearsay.  Their argument was procedural.  They contended that Shashi was required to testify first.  Only then could Defendants attack his credibility.  And only after his credibility was attacked could prior consistent statements from third parties be admitted at trial.

THE ANALYSIS

The argument by Defendants on appeal concerned trial tactics and the order of proof.  Many trial courts might have required the witnesses to proceed in the order Defendants described.  However, controlling the sequence of witnesses is a matter of trial management.  It is not a ruling on the admissibility of the evidence itself.

Pursuant to Evidence Code section 791(b), prior consistent statements are admissible when an express or implied charge has been made that the witness fabricated testimony or was influenced by bias or other improper motive.  Section 791(b) carries one further requirement the sequencing dispute did not reach: the consistent statement must have been made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.  Here, the Court found that Defendants’ overarching theme at trial was precisely that: an accusation that Plaintiffs had fabricated the real estate partnership.

Once that finding was made, and the timing requirement was satisfied, the door opened for prior consistent statements.  The Court identified several reasons why the sequencing objection failed.

First, the usual danger of hearsay is minimal when the party whose statements are at issue will testify at trial and be subject to cross-examination.

Second, in a civil case, the parties and their counsel generally know what a party will testify to.  They have already conducted a healthy amount of discovery, including depositions of the parties.  By way of example, in opening statements the Defendants openly challenged what the Plaintiff would testify to, and so they were well aware of testimony that would occur in this action.  And so permitting a third-party witness to testify before the party testified was not prejudicial due to the predictability of party testimony.  This issue is very different in a criminal case where a defendant often does not testify.

Third, even under the federal rules, which differ from California law on this point, when it is clear that a party will testify and what testimony they will give, a third party may testify beforehand.

Defendants also challenged the ten-witness strategy as improperly priming the jury.  The Court dismissed the argument.  It pointed out that the result would have been the same regardless of order.  If Shashi had testified first and ten witnesses followed, the same evidence would have been admitted.  The sequencing did not change the admissibility of the testimony.  It only changed when it came in.

FINAL THOUGHTS

The prior consistent statements issue in Jogani offers practical lessons for litigators on both sides of a partnership dispute.

The first lesson is that where the existence of a partnership or joint venture is at issue, the parties should expect third party witnesses to play a role.  Expect the prior consistent statements to come in: the defense will struggle to avoid accusing the party asserting the partnership of fabrication, and that accusation is exactly what opens the door.  A verbal dispute is a he/she said type dispute that will open the door to many types of hearsay evidence.

Second, the order of witnesses is a matter of trial strategy, not admissibility.  Calling multiple third-party witnesses before the primary party testifies is a legitimate and effective approach.  It builds not just a foundation but credibility before the central witness takes the stand.  As the Court confirmed, if the evidence is admissible, its sequence does not determine whether it comes in.

Bear in mind, though, the appellate holding found that this was not reversible error.  That is not always the right call in every case.  The devil is in the details.  And a trial judge retains discretion to require the party to testify and lay a foundation first.

Randy Sullivan has taken several partnership, corporate, LLC, and accounting-related cases to trial and is well versed in these strategies.