Behrens v. Bloom

There is no accommodating rule of practice that permits a plaintiff to proceed to trial but half prepared to meet a defense intelligently pleaded, and, if victorious, retain the verdict in his favor, but, if defeated, make his want of preparation ground for a new trial simply because the defeat was unexpected, and therefore a “surprise,” which other existing evidence, that full preparation and diligence would have brought forward, might have prevented. The subsequent disclosure of such evidence often brings with it proof that the party not producing it was guilty of neglect,—a circumstance…