Use the "missing witness" jury instruction to smoke out helpful testimony by your opponent's expert.

Suppose your opponent's controlled witness - an expert, say, or an employee - gave deposition testimony that's damaging to his or her own side. Oops.

Now comes the trial and you learn the witness in question won't be called. Is this potentially powerful evidence now entirely beyond your reach?

Not if you're entitled to the missing witness instruction, IPI 5.01, explains Chicago lawyer Brian Murphy in the July 2015 issue of Tort Trends, the newsletter of the ISBA's Tort Law Section. The trick: you have to show four elements before the witness qualifies as "missing," and even then you'll need to connect some dots for the jury to help them understand the importance of the missing testimony.

When is a witness "missing"?

Illinois Pattern Jury Instruction 5.01 reads as follows:

If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:

1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence;

2. The witness was not equally available to an adverse party;

3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him;

4. No reasonable excuse for the failure has been shown.

Murphy takes a look at the case law to see how courts have defined these elements in the context of real-world fact patterns (see the newsletter article for case cities). Some of what he found:

• A retained expert is "under the control of the party," as is an employee - but not necessarily a former employee.

• "Where a party learned of an August trial date in May, but waited to advise her expert until a week before trial and the witness was not available, that party failed to exhibit reasonable diligence in producing the witness at trial."

• A witness who was retained by the defendant to perform an independent medical exam of the plaintiff was "not equally available" to that plaintiff.

Connecting the dots for the jury

Assume the witness qualifies as "missing," so that IPI 5.01 applies and the judge reads it to the jury. As Murphy points out, "[t]he court does not instruct the jury on precisely what the missing witness said, only that "an inference can be drawn that the party's own witness would have provided damaging testimony." Instead, it's up to you in closing argument to explain why the missing testimony is important.

Murphy gives an example where the defense withdrew - just after the plaintiff rested her case - an expert who gave damaging testimony. "[A] discussion was had with the court…to understand precisely what type of argument plaintiff's counsel could make when explaining the instruction and explaining the inference the jury could make," Murphy wrote.

"While plaintiff's counsel was not permitted to state exactly what the expert would have said if called to testify, counsel was permitted to argue that the court had found that all of the elements for the instruction had been met [and that] the expert was retained by defendant, examined the plaintiff, made certain findings and would have offered opinions concerning causation. By doing this before closing, plaintiff's counsel was able to argue the instruction effectively without generating an objection."