25-1107. Order of trial.

When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise directs:

(1) The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it.

(2) The defendant must then briefly state his defense, and may briefly state the evidence he expects to offer in support of it.

(3) The party who would be defeated if no evidence were given on either side must first produce his evidence; the adverse party will then produce his evidence.

(4) The parties will then be confined to rebutting evidence unless the court, for good reasons in furtherance of justice, permits them to offer evidence in their original case.

(5) When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be refused or given by the court; which instructions shall be reduced to writing if either party requires it.

(6) The parties may then submit or argue the case to the jury. In argument, the party required first to produce his evidence shall have the opening and conclusion. If several defendants have separate defenses and appear by different counsel, the court shall arrange their relative order.

(7) The court may again charge the jury after the argument is concluded.

Source

Annotations

1. Opening statements

2. Production of evidence

3. Instructions

4. Closing arguments

5. Miscellaneous

1. Opening statements

Statute does not require plaintiff's attorney to state a "cause of action" in opening statement to jury, nor a statement of all evidence intended to be relied on. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934).

Counsel is allowed considerable latitude in opening statement; mere fact that he fails to prove all that he expected does not mean statement intentionally false. Yechout v. Tesnohlidek, 97 Neb. 387, 150 N.W. 199 (1914).

2. Production of evidence

Party required first to produce evidence has the right to open argument. Redman Industries, Inc. v. Morgan Drive Away, Inc., 179 Neb. 406, 138 N.W.2d 708 (1965).

Burden of proving damage in eminent domain proceedings rests on landowner. Rath v. Sanitary District No. One of Lancaster County, 156 Neb. 444, 56 N.W.2d 741 (1953).

Party on whom rests burden of proof must first produce evidence and rest; contrary rule by trial court was not prejudicial error in principal case. Olson v. Hansen, 122 Neb. 492, 240 N.W. 551 (1932).

Party who would be defeated if no evidence produced has burden. Grosvenor v. Fidelity & Cas. Co., 102 Neb. 629, 168 N.W. 596 (1918).

Party having burden of proof first produces evidence and opens; no discretion in court. Sheibley v. Fales, 81 Neb. 795, 116 N.W. 1035 (1908).

Right to open and close evidence and arguments follows burden of proof. Refusal is prejudicial error. Brumback v. American Bank of Beatrice, 53 Neb. 714, 74 N.W. 264 (1898).

If party having burden of proof permits others to first introduce evidence, he waives right to open and close. Brooks v. Dutcher, 22 Neb. 644, 36 N.W. 128 (1888).

3. Instructions

Proper time to submit requested instructions is as early in trial as possible; not later than close of evidence. Whitehall v. Commonwealth Casualty Co., 125 Neb. 16, 248 N.W. 692 (1933).

4. Closing arguments

In jury trial, the party who, by the pleadings, is required to first produce evidence is entitled to open and close argument to jury. J. I. Case Co. v. Hrubesky, 125 Neb. 588, 251 N.W. 169 (1933).

Party who, by pleadings, is first required to produce evidence is entitled to opening and closing arguments. Bennington State Bank v. Petersen, 114 Neb. 420, 207 N.W. 673 (1926).

Improper argument, rebuked by trial court, will not justify reversal, unless Supreme Court believes statement prejudicially influenced jury. Court on own motion should interfere to prevent improper appeal to jury. Krum v. Sullivan & Schaberg Transfer & Fuel Co., 97 Neb. 491, 150 N.W. 640 (1915); Cowan v. Ertel, 95 Neb. 380, 145 N.W. 841 (1914).

Whether defendant can deprive plaintiff of reply by refusing to argue is discretionary with court. Henry v. Dussell, 71 Neb. 691, 99 N.W. 484 (1904).

The right to open and close is determined by an inspection of the pleadings. Zweibel v. Myers, 69 Neb. 294, 95 N.W. 597 (1903).

If any material facts in petition are not admitted, but denied, directly or argumentatively, plaintiff opens. Sorensen v. Sorensen, 68 Neb. 483, 94 N.W. 540 (1903).

Denial of damage alone, plaintiff opens. Summers v. Simms, 58 Neb. 579, 79 N.W. 155 (1899).

Waiver of right to open is not waiver of right to reply to defendant's argument. Hickman v. Layne, 47 Neb. 177, 66 N.W. 298 (1896).

On trial by court, denial of right to open is not error, if party is not prejudiced thereby. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894); See Olds Wagon Co. v. Benedict, 25 Neb. 372, 41 N.W. 254 (1889).

Where insanity was pleaded as defense to suit on note, defendant had right to open and close. Rea v. Bishop, 41 Neb. 202, 59 N.W. 555 (1894).

Denial of right to open and close is prejudicial error. Johnson v. Nelson, 3 Neb. Unof. 260, 91 N.W. 526 (1902).

5. Miscellaneous

Suggestion of amount of recovery was not improper. Yount v. Seager, 181 Neb. 665, 150 N.W.2d 245 (1967).

Order of trial presented by this section controls reading of testimony taken at former trial. Mills v. Mills, 130 Neb. 881, 266 N.W. 759 (1936).

Aggravated misconduct of counsel in argument may require reversal. Hansen v. Mallett, 101 Neb. 339, 163 N.W. 145 (1917).

Where both parties move for directed verdict, finding of court takes place of verdict. Krecek v. Supreme Lodge of F. U. A., 95 Neb. 428, 145 N.W. 859 (1914).

Order of trial is governed by state of pleadings at beginning of trial, not by admissions in trial. Kraus v. Clark, 81 Neb. 575, 116 N.W. 164 (1908).

An action, including a counterclaim, should be tried as an entirety, and not as separate suits. Miller v. McGannon, 79 Neb. 609, 113 N.W. 170 (1907).

To review ruling on misconduct of attorney, parties must object and except to ruling. Chicago, B. & Q. R. R. Co. v. Kellogg, 54 Neb. 127, 74 N.W. 454 (1898).