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An easy and important addition to your pretrial order you might be omitting

Why you should be on your may call list

Here’s a simple addition you may want to be making to your “will call” list in pretrial orders: yourself

There is a non-trivial chance at any trial that you might be the best or simplest witness to call on an evidentiary issue that otherwise might be elusive to prove. For example, where you have a claim for inappropriate pretrial conduct, you might need to get a fact into the record about the other side’s behavior that won’t come across from a document alone (or where the document is not self-authenticating). And, if you ultimately move for fees under some Georgia statutes, such as O.C.G.A. § 9-11-68(e), you’ll need to demonstrate the reasonable value of the service provided.

A bit more about 9-11-68

9-11-68(e) is a particularly compelling reason to include yourself (or co-counsel) on your “may call” list. The statute allows you to request fees directly from the jury after they’ve rendered a verdict. This is a powerful tool because you already know the jury’s opinion of your case when you move for fees. And, because it’s a still-underutilized provision, your opposing counsel (and sometimes the Court) won’t be prepared for it. 

Some attorneys are understandably reluctant to include their 9-11-68(e) claim in the pretrial order. It is difficult to predict whether the jury will be receptive to your claim pretrial. And, you lose the element of surprise. Fortunately, including your fee request in the pretrial order is likely not mandatory, because Georgia courts don’t have discretion in whether to let you present a 9-11-68(e) claim. What Courts do have discretion to do, however, is to not let you amend your may call list. So if there’s any chance you will use yourself as a witness, you’d better include yourself on that list. While this approach potentially tips the other side off to your intentions, there are other reasons you might need your own testimony at trial. And including your name as a matter of routine practice will make it seem like less of a red flag on a case-by-case basis.

Who will your co-counsel be?

By the way, the possibility you’ll need to call yourself at trial is yet another reason to consider having co-counsel at the table with you. Someone will need to question you. Learn more about using embedded trial counsel. If you are thinking about using 9-11-68(e) at a trial for the first time, give Kastorf Law a call.

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