Power Litigation™ – Preparing the Witness to Testify: the legal ethics, and how to do it ethically.

As part of our free publications of useful litigation materials for lawyers and legal assistants, we offer the following summary of the legal ethics involved in an attorney’s preparation of a witness to testify in a deposition (or trial). The summary is short. The summary has all the dangers of any condensation of an ethics subject that has many qualifications. has many variations, and is subject to 50 different state ethics authorities. Yet what follows is a handy review, with tips and tactics you can use, plus being a reminder that a lawyer is engaged in an honorable profession that disavows lies.

The Ethics of Preparing the Witness for a Deposition

Every good trial attorney prepares his/her witness and client for the deposition. Before you meet, you should think how you will handle the situation if the witness is not telling the facts in a believable manner, or there are other problems with the witness that need correction. The problem about “corrections” is that you do not want the witness — or the bar ethics or grievance committee or the court — to think that you are attempting to persuade the witness to commit perjury. Without forethought, you can easily fall into an ethics charge that you were asking the witness to testify falsely.

First of all, remember that your ethics must be clear to the witness. The witness must be sure of your commitment to truth. If you show ethical leadership, the witness ordinarily will respond by telling the truth. For example, you can say to a witness: “If you tell the truth, no one can trip you up.” That sentence will do the triple work of encouraging truth-telling, making you look good, and making the witness speak more confidently.

There are two ways of telling the truth. One way is to tell the truth in a hesitating and confused way so the truth is not believed. The other way is to tell the truth confidently and clearly, so it is believed. You can tell the witness how to communicate more clearly. You can’t tell the witness to change the content of what he/she has to say.

Some witnesses ramble or unnecessarily inject items that to them seem indispensable for completeness, but to you are just unnecessary details cluttering the view of the jury. So as you prepare the witness there is a tension between you allowing the witness’s to follow their own desire to “tell everything I know”, and your desire to have the witness tell a succinct and pointed version of the total occurrence. One solution to resolve that tension is to say to the rambling witness:

The jury has a hard job to do. They have to hear from a lot of witnesses and not get confused how things relate to the decisions they have to make. Let me tell you the outlines of the case and the law involved, and what the jury will be most interested in. After I’ve given you that outline of the case, then let’s talk about the points you know that will help the jury.

Then explain the law and how a focus by the witness on certain facts will be helpful to the judge and jury. Do the Lecture (described below)

Emerging from the Horse-Shed, and Still Passing the Smell Test: Ethics of Witness Preparation and Testimony

By John W. Allen

Presented here by the courtesy of attorney John W. Allen. Edited by Leonard Bucklin.

A. Summary of the Law – Interviewing and Preparing Prospective Witness.

See generally, Restatement of the Law Third, The Law Governing Lawyers, Section 116 and 120; Model Rules of Professional Conduct, Rules 1, 3 and 8.

1. A lawyer may interview a witness for the purpose of preparing the witness to testify.
2. A lawyer may not unlawfully obstruct another party= s access to a witness.
3. A lawyer may not unlawfully induce or assist a prospective witness to evade or ignore process obliging the witness to appear to testify.
4. A lawyer may not request a person to refrain from voluntarily giving relevant testimony or information to another party, unless:
   • a. the person is the lawyer’s client in the matter; or
   • b. (i.)The person is not the lawyer’s client but is a relative or employee or other agent of the lawyer or the lawyer’s client, and
   • (ii.) The lawyer reasonably believes compliance will not materially and adversely affect the person’s interests.

B. Okay to Talk to Witness – A lawyer may interview a witness for the purpose of preparing the witness to testify.

Most lawyers have heard the term “horse-shedding the witness”. The term was originated by James Fennimore Cooper in the 1800’s, when there were horse sheds near the courthouse where lawyers would talk the case over with their witness. Witness preparation always has been an expected and even essential part of trial preparation. Section 116 of the Restatement of the Law Third, The Law Governing Lawyers expressly permits interviews with a witness for the purpose of preparing testimony, and Comment (b) to Section 116 lists a wide range of permissible witness preparation activities.

• Inviting the witness to provide truthful testimony favorable to the lawyer=s client;
• Discussing the role of the witness and effective courtroom demeanor;
• Discussing the witness= s recollection and probable testimony;
• Revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness=s recollection or recounting of events in that light;
• Discussing the applicability of law to the events in issue;
• Reviewing the factual context into which the witness= s observations or opinions will fit;
• Reviewing documents or other physical evidence that may be introduced; and
• Discussing probable lines of hostile cross-examination that the witness should be prepared to meet.
• Witness preparation may include rehearsal of testimony.
• A lawyer may suggest choice of words that might be employed to make the witness= s meaning clear.
• However, a lawyer may not assist the witness to testify falsely as to a material fact. [See ‘ 120(1)(a)].

How you do each of the above items is important. E.g. Geders v U.S., 425 U.S. 80, 90 n. 3 (1976) (A [a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it ); Hall v. Clifton Precision, 150 FRD 525 (D.C. E.Pa. 1993); State v. Blakeney, 408 A.2d 636 (Vt. Sup.Ct. 1979).

Ethical discipline for improper witness preparation is rare. A Reported disciplinary cases on attempts to influence testimony involve subornation of perjury or similarly flagrant misconduct in which the lawyer overtly tries to induce clients or witnesses to give testimony that the lawyer knows is false or knows that the witness believes is false. 14 ABA/BNA Lawyer’s Manual on Professional Conduct, No. 2, Special Report, 2/18/98 which cites a number of cases. E.g., In re Attorney Discipline Matter, 98 F.3d 1082 (CA 8 1996); In re Mitchell, 262 SE 2d 89 (Ga. Sup.Ct. 1979); Goodsell v Mississippi Bar, 667 So.2d 7 (Miss. Sup.Ct. 1996); Harrison v Mississippi Bar, 637 So. 2d 207 (Miss. Sup.Ct. 1994); In re Oberhellmann, 873 S.W.2d 851 (Mo. Sup.Ct. 1994); In re Edson, 530 A.2d 1246 (NJ Sup.Ct. 1987); In re Stroh, 644 P.2d 1161 (Wash. Sup.Ct. 1982).

C. Know What the Relevant Ethics Rules Prohibit.

Several of the ABA Model Rules of Professional Conduct (MRPC) potentially bear on a lawyer=s ethical responsibility when preparing witnesses. A lawyer may not:

• Counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent (Rule 1.2(d));
• Offer evidence that the lawyer knows to be false (Rule 3.3(a)(4));
• Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c)); or
• Engage in conduct prejudicial to the administration of justice (Rule 8.4(d)).

The Model Rules of Professional Conduct, Rule 3.4(b) states that a lawyer must not A counsel or assist a witness to testify falsely. Many courts also impose a A knowledge requirement. See, e.g., In re Shannon, 876 P.2d 548, modified on other grounds, 890 P.2d 602 (Ariz. Sup.Ct. 1994) (lawyer did not know that revised answers to interrogatories were untrue so as to permit finding that he violated MRPC 3.4(b)); see also Restatement of the Law Third, The Law Governing Lawyers‘ 120(1) (lawyer may not A knowingly counsel or assist a witness to testify falsely as to material issue of fact). See also Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 343 (1989). Under the MRPC Terminology section, A knowledge means A actual knowledge, but such knowledge may be inferred from circumstances.

The MRPC’s definition of Acknowledge suggests that a lawyer may be found to have the requisite state of mind under MRPC 3.4(b) when the evidence shows the lawyer actually knew or must have known that his witness preparation would assist a witness in testifying falsely. See Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 18 (1995) (requisite knowledge exists when a lawyer knows that witness is Apractically certain to interpret lawyer=s conduct as inducement to testify falsely). A somewhat stronger view is taken in Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of ACoaching.” 1 Geo. J. Legal Ethics 389, 404 n. 71 (1987) (likely that attorney may be disciplined under MRPC 3.4(b) for constructive knowledge or what attorney Ashould” have known ). This is consistent with the view that MRPC is a set of strict liability, quasi-criminal rules.

D. The Technique of Horse-shedding B A The Lecture.

“The Lecture” is an ancient device that lawyers use to coach their clients so that the client won= t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn=t done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “Who me? I didn’t tell him what to say,” the lawyer can later comfort himself. “I merely explained the law, see.” It is a good practice to scowl and shrug here and add virtuously: “That’s my duty, isn’t it?” Robert Traver, Anatomy of a Murder, 35 (St. Martin= s Press, 1958)(Traver is the pen name of the Honorable John D. Voelker, Michigan Supreme Court Justice.)

The Lecture as practiced usually involves three elements: the law, the words, the focus.

1. The Law. As a general rule, lawyers are permitted to tell witnesses about the applicable law and necessary proof. Restatement of the Law Third, The Law Governing Lawyers‘ 116, Comment b; State v McCormick, 259 SE 2d 880 (NC Sup.Ct. 1979); Nassau County (N.Y.) Ethics Opinion 94-6 (1994) (lawyer may inform client about law before getting client’s version of facts as long as lawyer in good faith does not believe that he or she is participating in creation of false evidence).
2. The Words. “A lawyer may suggest choice of words that might be employed to make the witness’ meaning clear.” This is permissible, so long as the substance of the ultimate testimony, as far as the lawyer knows or ought to know, remains truthful and is not misleading. See District of Columbia Ethics Op. 79 (1979).
3. The Subjects of Focus. A lawyer probably can suggest subject matters to focus on in responding to questions at a deposition or trial. See EEOC v. Mitsubishi Motor Mtg. of America, Inc., No. 96-1192 (D.C. Ill. Oct. 23, 1997). The judge characterized as “somewhat disingenuous” the contention that the EEOC’s letter to its witnesses with “memory joggers” of items to recall in testimony would taint the truth-finding process. The judge elaborated: Lawyers routinely prepare their clients for depositions by focusing the client on the particular facts of the case that have legal significance. Although lawyers cannot ethically tell or allow their clients to tell a lie, suggesting subject matters to focus on in telling their story is surely what every competent lawyer, including the Mitsubishi lawyers, do to prepare their clients for a deposition.

Courts disagree widely on what is permissible in the Lecture. The semantics used, and the emphasis given, by the attorney are important. E.g., see discussions in English v. Owens – Corning Fiberglass Corp., No. 96-06308A (Tex. D. Ct., 14th Dist. Feb. 9, 1998); In re Asbestos Litigation (Abner v A-Best Products Co.), Ohio Court of Common Pleas No. CV96-01-01AO (Dec. 12, 1997); In re Brown, No. 07-97-00609-CV (Tex, Cr. App., 3d Dist. Jan. 29, 1998). There are no bright lines. Lawyers have a duty to prepare witnesses about their testimony, the law, proof requirements, and even to suggest particular words, so long as the attorney does not know that the resulting testimony is false and there is a genuine concern that the witness testify truthfully. See generally Note, Professional Conduct and the Preparation of Witness for Trial, 1 Geo. J. Legal Ethics at 397, 401.404. The concern of the lawyer should always be for the truth to be told. Stay on the track of truth, and show your concern to the witness. Those words of concern are what a court is looking for in the Lecture.