Plaintiff Has Right To Re-Present Evidence At Retrial Before New Judge

In Anderson v. Kohler, No. 2-05-1212, 2007 WL 2964372 (Ill. App. (2d Dist.) Oct. 4, 2007), plaintiffs sued for breach of contract but the court granted defendants’ motion at the close of plaintiffs’ evidence in a bench trial after finding, without making credibility determinations, that plaintiffs had not proven that the contract existed. The appellate court reversed and remanded for “further proceedings.”

However, the successor judge before whom the case was retried did not permit plaintiff to start again. Rather, he relied on the transcript of the first trial and only heard defendants’ case and plaintiffs’ rebuttal live, and then entered judgment for defendants after crediting their testimony over plaintiffs’.

On a second appeal, the appellate court ruled that the refusal to allow plaintiffs to present all evidence through live testimony violated their due process rights. The court held that absent agreement of the parties, a successor judge may not make credibility determinations based on a transcript of proceedings over which another judge presided, even if the new judge heard some live testimony from all the same witnesses.

The opinion did not discuss it, but a serious problem here is that a plaintiff who suffers a directed verdict has put on her entire case, while defendant has not reciprocated. Thus, defendant knows what plaintiff's case is, but plaintiff does not know defendant's case. If remanded for a new trial, a plaintiff must be given the chance to vary how she presented her case, so that the first half of the case is not entirely following a script that defendant has already read.

One might argue that the judge was just trying to save time on remand. But the system should not try to save time at the expense of a party.