Calling the Opponent as a Witness: A Strategic Tool in Litigation

In many contentious legal matters, particularly when the opposing party appears to have the upper hand, the tactic of calling the opponent as a witness can prove to be an effective means to shift the balance. This blog explores the strategic use of calling an adversary to testify in litigation—its objectives, procedural mechanics, risks, and best-practice guidelines. Understanding this technique is indispensable for criminal-defence lawyers and civil litigators alike who seek to turn a disadvantage into an opportunity.

Introduction

The strategy of calling the opponent as a witness is often under-utilised but can become a game-changer when deployed with precision. In situations where our evidentiary base is weak or the opposing party holds most of the documentary and testimonial power, compelling the adversary to testify (or exposing their reluctance to do so) may create favourable openings. This article discusses how to implement this technique, the legal and strategic considerations, and how to avoid common pitfalls.

1. The Rationale Behind Calling an Opponent as a Witness

1.1 Why adopt this strategy?

When our own witnesses and evidence are insufficient, the adversary may hold key facts, documents, or admissions. By compelling them to testify, we aim to:

Extract admissions favourable to our case;
Expose contradictions or credibility issues in the opponent’s narrative;
Force recognition of our own documentary/electronic evidence (e.g., chat logs, video clips) by the other side;
De-emphasise or undermine the weight of the opponent’s previously un-challenged testimony.

1.2 The benefit in practice

For example, in a matter where the opponent controls documentary proof but resists direct testimony, seeking to call them as a witness may place them on the stand under oath and allow direct questioning rather than allowing their version to remain untested. The strategy thereby transfers control of certain facts back into our advocacy domain.

1.3 Evidence and procedure support

In U.S. practice, for instance, the tactic is discussed in commentary and case-law:

“Through strategically calling an adverse party as the plaintiff’s own witness … the party … has the opportunity to get a second bite at the apple.” lexology.com
Another article warns:
“[W]hen you examine an adverse witness on direct during your case you open up risks … It is easier and less dangerous to cross-examine an adverse witness during your opponent’s case than to examine that witness on direct.” Porter Wright Morris & Arthur LLP+1
Hence, the rationale is grounded in both doctrinal and practical litigation strategy.

2. Key Objectives When Calling the Opponent as Witness

When employing this tactic, the litigator should aim to achieve several inter-related objectives:

2.1 Objective 1: Secure admissions on key facts

A primary aim is to have the opponent concede factual elements beneficial to our position—e.g., that a contract was signed, a document existed, a procedure was followed or not followed, or a liability was admitted. Such admissions reduce the dispute’s factual scope, simplify trial issues, and help anchor our case.

2.2 Objective 2: Expose contradictions or weaken credibility

By putting the opposing party on the stand, we increase the risk of credibility attack: changes in story, evasive answers, inconsistencies with prior statements or documents. The adversary may feel less controlled than their own witnesses and thus may inadvertently provide openings for impeachment. litigate.com+1

2.3 Objective 3: Admit our key documentary/electronic evidence via opponent’s acknowledgement

Bringing the opponent to testify allows us to ask them to recognise emails, chat-logs, voice or video recordings, or other documents in front of the tribunal. That recognition strengthens admissibility and can overcome arguments of authenticity.

2.4 Objective 4: Reduce the weight of the opponent’s favourable witness testimony

If the opponent has a strong testimonial case, by calling them—or by forcing them to appear for questioning—we may undercut their comfortable stance. Rather than only face an opponent’s chosen favourable witnesses, we turn the spotlight onto the adversary themselves and shift momentum.

3. Common Challenges and How to Overcome Them

3.1 Challenge: The adversary refuses to testify

Often the opponent resists appearing as a witness, either by simply refusing or by delegating to a corporate representative rather than the person with personal knowledge. This poses a major tactical hurdle.

3.2 Solution: Cross-examine the representative

If the opponent sends a proxy or empowered delegate instead of the person with actual knowledge, we can treat them as a “hearsay conduit” and draw attention to the fact that the principal is avoiding direct testimony. The court may view the representative’s evidence as less credible or less weighty.

3.3 Challenge: Risk of exposing one’s own position by calling the opponent

Calling an adversary may open the door to their version of events, giving them an opportunity to frame the narrative, or leading to unpredictable testimony. As one commentary warns:

“Putting an adverse witness on direct during your case can back-fire.” Porter Wright Morris & Arthur LLP+1

3.4 Solution: Use narrow, controlled questioning

We must prepare meticulously: identify the precise admissions we want, draft leading questions if permitted, and limit the scope of direct examination. In many jurisdictions, a party may call a hostile witness and ask leading questions. Porter Wright Morris & Arthur LLP+1
In essence, the examination must be tightly focused, avoiding giving the adversary free reign to narrate their version.

4. Procedural Steps for Implementation

4.1 Step 1: Identify the adversary with relevant knowledge

First, determine whether the opposing party (or their principal) holds material facts or evidence essential to our case that cannot easily be obtained otherwise.

4.2 Step 2: Decide whether to compel testimony or rely on cross-examination later

One strategic choice is whether to call the adversary as part of our case-in-chief (or in our turn) or wait to cross-examine them when they testify for the opposing party. There are trade-offs: calling them yourself gives control of timing but risks exposing their narrative; waiting to cross-examine may limit your ability to frame the narrative. As noted:

“It is easier and less dangerous to cross‐examine an adverse witness during your opponent’s case than to examine that witness on direct during your case.” Porter Wright Morris & Arthur LLP

4.3 Step 3: If needed, file application/subpoena/means of compulsion

Where the adversary resists appearance, consider a court application (in civil cases) to compel attendance—e.g., via subpoena or court direction. The concept of subpoena ad testificandum illustrates the court’s power to compel testimony. lw.com+1
In your jurisdiction (Thailand), analogous procedural steps should be followed, referencing civil procedure rules.

4.4 Step 4: Prepare the examination plan

Prior to hearing, map the key factual admissions you seek, compare prior statements (depositions, correspondence, document draft) to the likely testimony, and develop impeachment lines if contradictions emerge.

4.5 Step 5: On the stand—use hostile/leading questions as permitted

When the adversary begins testifying, treat them as a hostile or adverse witness. In many jurisdictions, leading questions are permitted on direct examination of an adverse or hostile witness. Porter Wright Morris & Arthur LLP+1
Ask narrowly directed questions that force a yes/no or simple acknowledgement of fact, then use follow-up questions to expose inconsistencies or force concessions.

4.6 Step 6: After testimony—follow-through

Beyond the hearing, ensure the record reflects: (i) the adversary’s appearance and testimony; (ii) any admissions obtained; (iii) any document recognition; (iv) contradictions or evasions for later argument on credibility or weight. Then adjust your closing submissions or trial brief to emphasise the value of this testimony for your case.

5. Tactical Considerations & Risks (The Double-Edged Sword)

5.1 Scope restrictions and rules of evidence

Although calling the opponent can be powerful, rules of evidence may impose restrictions. For example, in cross-examination doctrine:

“Counsel may also use witnesses under cross-examination to highlight the opponent’s ‘empty chairs’, disclosure failings and inconsistencies with fellow witnesses (or experts who have relied on witness testimony).” globalarbitrationreview.com
Thus, one must be aware of the local procedural/evidence regime in Thailand or the applicable forum and ensure compliance.

5.2 Risk that opponent controls narrative

By placing the adversary on your witness list, you may allow them to deliver a coherent narrative which may sway the tribunal, especially if your own witnesses are weaker. A commentary warns:

“The direct examination of an adverse witness should be brief and narrowly focused on the factual points that can or must be established.” Porter Wright Morris & Arthur LLP
Therefore, if the adversary’s testimony is comprehensive and not subject to effective control, the strategy may backfire.

5.3 Preparation requirement is high

This tactic demands rigorous preparation. The lawyer must know the facts, documents, prior admissions, and anticipate evasive answers. The article emphasises:

“Preparation is key … mock trials or practice sessions … help you anticipate possible reactions from the defendant and adjust your questioning techniques accordingly.” litigate.com
Without such preparation, the adversary may dominate, render your questions ineffective, or even gain credibility by appearing cooperative.

5.4 Use in appropriate contexts only

The technique is particularly suited where you are at a disadvantage—when your case is weak, the opponent’s evidence is strong, and you need to shift momentum. In the wrong case (where you already have the lead), calling the opponent may be unnecessary or even harmful.

5.5 Legal-ethical considerations

Ensure compliance with ethics rules regarding witness contact. For example, communications with the opposing party who is a witness may be restricted, or you must avoid coaching or improper influence. Also be aware of local rules about compelling parties to testify—some jurisdictions have limitations on calling the adversary. lw.com
Thus, ensure the strategy is consistent with professional responsibility and procedural fairness.

6. Application in Criminal Defence and Civil Litigation

6.1 Criminal defence context

In criminal matters, if you represent the defendant and the prosecution holds much of the factual narrative, you may seek to call a prosecution witness who is also a party (where permitted) or to apply for their testimony. However, in many jurisdictions the prosecution cannot call the defendant as a witness for the prosecution, and the defendant has the right to remain silent. For that reason, the strategy is more common in civil litigation or in criminal defence when the defendant chooses to testify.
Nevertheless, for the defence, if the prosecution witness had been an adversary in prior civil matters or a party to a related contract, the technique of treating them as an adverse or hostile witness for cross-examination may still be viable.

6.2 Civil litigation context

In civil cases the technique tends to be more frequent and appropriate. For example:

In a contract dispute where the opponent holds the original contract or has the signing party available;
In a matrimonial or family asset division case where the opponent is the controlling shareholder or trustee and holds key information;
In a debt enforcement proceeding where the debtor holds records or testified previously and you may call them to admit liability or document existence.

6.3 Practical scenario

Imagine you represent the creditor in a loan enforcement case. The debtor claims no knowledge of the agreement and resists personal testimony. You undertake to apply to the court for a subpoena or order compelling the debtor’s appearance. On the stand, you ask the debtor directly: “Did you sign this document on 15 March?” and show their signature. You follow up: “You did so in your capacity as director of XYZ Co., did you not?” Then you show chat logs or video evidence. The debtor denies, you impeach via earlier correspondence. Their credibility is weakened. You thereby obtain an admission of signature or acknowledgement of document existence, strengthening your case for summary judgment or favourable decision.

7. Step-by-Step Checklist for Practitioners

Identify the adversary/party who holds knowledge or documents that favour your case.
Assess whether your case is sufficiently disadvantaged to warrant the tactic.
Research local procedural rules and evidence rules: can you call the opponent? Can you compel attendance? What are restrictions on examination (leading questions, hostile witness rules)?
Draft a plan: which facts do you want admitted? Which documents need recognition? Where is the opponent vulnerable to contradiction?
File any necessary motion or application (subpoena, court order) to compel attendance.
Prepare the opponent’s prior statements, documents, deposition transcripts, communications to identify any inconsistencies.
Prepare examination script: leading questions (if permitted) directed to admissions; follow-up questions to expose evasions.
In the hearing: maintain control, keep the examination narrow, use prepared questions, avoid giving the opponent room to narrate beyond your plan.
At end of opponent’s testimony: highlight the key concessions or contradictions in your closing arguments or trial brief.
Follow-through: adjust case strategy to address newly obtained admissions or weakened credibility of the opponent.

8. FAQs: Frequently Asked Questions

Q: Is it always permissible to call the opponent as a witness?
A: Not always. The permissibility depends on jurisdictional rules of procedure and evidence. Some jurisdictions may limit or prohibit calling an opponent as a witness in certain proceedings. For example, local commentary warns that calling the opponent may be limited under certain evidentiary frameworks. lexology.com+1
Therefore, you must verify local applicability (in Thailand or your forum).

Q: Is calling the opponent risk-free?
A: No. There are risks: the opponent may control narrative, your preparation may not account for every angle, you may inadvertently reveal your strategy, or the judge may view the tactic as an over-reach. The strategy must be used selectively.

Q: Can leading questions be used when examining the opponent?
A: In many jurisdictions, yes. For example, under U.S. federal rules, when a witness is hostile, leading questions may be permitted. Porter Wright Morris & Arthur LLP+1 But you must confirm the rule in your forum (Thailand) and if your case is civil or criminal.

Q: At what stage should this strategy be used?
A: Generally when you are at a disadvantage and need to shift the dynamics—i.e., you lack strong witnesses, the opponent controls key documentary evidence, or you need an admission that only they can give. It is less appropriate if your case is already strong.

9. Concluding Remarks

In sum, calling the opponent as a witness represents a potent tactical lever in litigation. When executed with precision, it can extract favourable admissions, expose credibility weaknesses, compel production or recognition of documents, and re-balance a seemingly disadvantaged position. However, it is not a panacea. It demands rigorous preparation, a deep understanding of procedural and evidentiary rules, and a strategic mindset attuned to risk-management.

As the old adage runs: “When our information is insufficient, let their information work for us.” The opponent, often initially seen as the keeper of key facts, can be coaxed onto the stand—and thereby converted into an instrument of our advocacy.

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For clients based in or dealing with matters in Thailand, partnering with a lead law firm in Bangkok ensures that you benefit from both local procedural expertise and strategic litigation insight. Thai-based dispute-resolution practice-guides highlight that top firms combine deep local knowledge with international standards. chambers.com+2legal500.com+2
For example, such a firm can help ensure you meet Thai rules on testimony, evidence, subpoenas and document recognition while optimizing your strategy for maximum leverage.