In this article, Davis LLP's Brendan Clancy canvasses recent caselaw on the rule in Browne v. Dunn. The rule provides that if Party A intends to lead evidence that conflicts with the testimony of Party B, Party B should be given advance notice of that conflicting evidence prior to or on the occasion of his or her cross-examination. This is so that the witness is given "an opportunity to explain what might otherwise appear to be contradictions in the witness' evidence."

Recent caselaw suggests that though the rationale behind the rule remains intact, the rule has been relaxed. Specifically, Party B need not be cross-examined on the conflicting evidence if there is reason to believe that Party A gave reasonable notice of the conflicting evidence by other means. Brendan further clarifies,

What has evolved is the manner in which this notice is given. Notice need not come by way of cross-examination – it may come from the pleadings, questions on examinations, or even discussions between counsel. Providing notice other than by means of cross-examination could solve one problem commonly faced by litigators, namely, putting a direct proposition to the witness that the witness will almost certainly disagree with.

This article originally appeared in the December 5, 2014 issue of The Lawyers Weekly.

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