Ballard v. Meyers , 275 Ga. 819 ( 2002 )

Carley, Justice.

Appellees Robert and Kerri Meyers brought suit against Kathleen Sneed, seeking to recover for injuries allegedly sustained in an automobile collision. Ms. Sneed died during the pendency of the action, and the personal representative of her estate, W.A. Ballard, was substituted as the defendant. On cross-examination, Mr. Meyers was questioned about the damages he and his wife had claimed in connection with a prior lawsuit involving a different collision. When he testified that he did not remember the amount of damages sought in that previous action, Ballard sought to introduce as impeaching evidence a certified copy of the complaint filed therein. The trial court refused to admit the document for several reasons, including Ballard’s failure to have listed it in the pretrial order. The jury returned a verdict in favor of Appellees, and the Court of Appeals affirmed in an opinion which was not officially reported. Ballard v. Meyers, 250 Ga. App. XXV (2001). We granted certiorari to address the issue of whether a party can impeach a witness with a document that is not listed in the pretrial order.

OCGA § 9-11-16 and Uniform Superior Court Rule 7 are the controlling authority on matters involving pretrial orders. By their terms, neither expressly excludes from pretrial disclosure documents used for impeachment purposes in civil cases. However, it is equally true that neither the statute nor the Rule specifically includes such evidence in the disclosure requirement. Our cases do hold that the names of rebuttal witnesses must be listed, and Appellees assert that there is no reason to distinguish between the requirement of disclosure of such witnesses and documentary evidence of .impeachment. See Cook v. Huff, 274 Ga. 186, 189 (4) (552 SE2d 83) (2001).

As with witnesses who are called in the case-in-chief, rebuttal witnesses testify in support of one of the parties to a lawsuit. The difference is that rebuttal witnesses may or may not be necessary. See Canada West v. City of Atlanta, 169 Ga. App. 907, 912 (7) (315 SE2d 442) (1984). To prevent ambushing opposing counsel with an unfamiliar witness, however, Rule 7.2 (19) provides for mutual disclosure in the pretrial order of all of those who either “will” or “may” be called. When the names of all potential witnesses are thus revealed by the parties, the lawyers thereafter can conduct any necessary interviews or, in some cases, show just cause to pursue further discovery. As a sanction for non-disclosure, OCGA § 9-11-16 (b) does not allow the calling of an unlisted witness unless the party can show that it is necessary “to prevent manifest injustice.” Cook v. Huff, supra at 189 (4); Minnick v. Lee, 174 Ga. App. 182, 184 (1) (329 SE2d 548) (1985); Canada West v. City of Atlanta, supra at 912 (7).

While an attorney in a civil action should disclose the names of those who will or may be relied upon affirmatively to prove the client’s case, there is no comparable rationale for requiring the disclosure of documents which may be used to attack the credibility of the other side’s witnesses. Although pretrial disclosure is a laudable goal, the essence of the judicial system in Georgia and throughout the United States is the adversarial trial process. In accordance with that process, Rule 7 itself recognizes the viability of distinguishing in the pretrial order between listing the parties’ witnesses and disclosing impeaching documents. As noted, subsection (19) of Rule 7.2 requires disclosure of all of those witnesses who “will” or “may” be called. However, Rule 7.2 (14) does not impose a similar requirement that a party list all documents that he or she should reasonably anticipate tendering at trial. Instead, that provision specifies only a listing of “all documentary and physical evidence that will be tendered at the trial by the Plaintiff or Defendant.” (Emphasis supplied.) This certainly includes all evidence upon which a party will rely affirmatively to prove the case. However, it is impossible for counsel to know whether impeaching documents will even be relevant and admissible until the witnesses for the opposing party testify at trial, so there is no possible justification for requiring disclosure of such evidence in the pretrial order. By its terms, Rule 7.2 (14) does not extend to the pretrial disclosure of such documentary evidence as a party may potentially tender by way of attacking the credibility of the other side’s witnesses.

This analysis does not rest on an overly restrictive reading of Rule 7.2 (14) and does not unfairly favor one party over another. The distinction drawn between the pretrial disclosure of rebuttal witnesses and documentary evidence is based on the actual wording of the Rule itself, and there is nothing that is unfair in the unfettered impeachment of any witness whose credibility is subject to attack. A contrary interpretation would simply rewrite Rule 7.2 (14) to impose a requirement of broad disclosure of all documents that a party may possibly introduce, and such a holding would actually promote, rather than discourage, trial by ambush. A party’s witnesses could lie on the stand and then that party can object to the introduction of any impeaching documents which were not expressly listed in the pretrial order.

Although Appellees’ prior action involved a separate incident, it nevertheless was relevant to whether their present claim was for preexisting injuries. Georgia has long recognized that all witnesses will be presumed to speak the truth and, if possible, no false statement should be attributed to any of them. See Durham v. Holeman, 30 Ga. 619, 626 (5) (1860). In accordance with this principle, counsel for Ballard was entitled to assume before trial that Mr. Meyers would answer questions about the previous case truthfully and, thus, that no documentary evidence related thereto would have to be proffered. However, because Mr. Meyers testified that he could not remember the amount of damages earlier claimed, the pleading in the prior case became probative and admissible for impeachment purposes. The trial court was apparently concerned that admission of the complaint would be harmful because the lack of pretrial disclosure prevented Appellees from obtaining substitute trial counsel and calling their current trial attorney to testify about the apportionment of damages between the two collisions. However, it was entirely possible for their present trial counsel to elicit precisely the same information by questioning Mr. Meyers on re-direct examination. The Appellees, not their lawyer, were the parties to the former lawsuit and the present case. The relevance of the pleading did not involve a legal issue which required an expert opinion, and the drafter was not the sole indispensable witness as to whether their former recovery was for the same injuries which they now alleged that they sustained in the subsequent crash.

“The object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. Consistent with this statutory mandate, “[t]he policy of Georgia law is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood. [Cits.]” Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 796 (3) (152 SE2d 815) (1966). The trial court’s ruling in this case is at odds with this principle, since it authorizes the exclusion of relevant impeaching evidence and allows the credibility of a crucial witness to go unchallenged. Clearly, this subordination of the discovery of the truth to a mere procedural device is erroneous. See Minnick v. Lee, supra at 184 (1). In a trial, the credibility of the witnesses is a matter which should be resolved by the jurors who have heard all of the relevant evidence, and not by the text of the pretrial order. OCGA § 24-9-80.

Our holding is a narrow one, as it provides only that the pretrial disclosure requirement does not extend to documentary evidence upon which a party may possibly rely defensively for impeachment purposes. Those documents that a litigant intends to rely upon affirmatively to meet the burden of proving his or her case still must be disclosed in the pretrial order. Before trial, Ballard’s lawyer did obtain a certified copy of the complaint in the prior action. It is urged that, under these circumstances, he reasonably anticipated using it at trial and, therefore, should be required to list it in the pre-trial order. As previously noted, however, the controlling presumption is that all witnesses speak the truth. Durham v. Holeman, supra. As a result thereof, attorneys in this state can reasonably anticipate that the need to introduce impeaching evidence will not arise. However, that presumption of veracity is only a reasonable, not an irrebuttable, one, and a good trial lawyer should be prepared to rebut contrary testimony or other evidence that is false. Thus, counsel for Ballard was reasonably justified in assuming that he would not need to introduce the complaint, but he was also professionally obligated to obtain a certified copy of that document in the event that the assumption proved incorrect. Therefore, the failure to list the document was not an intentional act of ambush, but an instance of adherence to applicable legal and professional concepts. To hold otherwise would turn the presumption upon which Ballard’s lawyer acted on its head, so that it would be unreasonable for counsel not to anticipate that all those called by the other side may testify falsely and thereby subject themselves to impeachment. Because that would constitute a departure from settled principles of Georgia law, the judgment of the Court of Appeals is reversed with direction to remand this case for retrial.

Judgment reversed with direction.

All the Justices concur, except Fletcher, C. J., and Sears, P. J., who dissent.