Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what he ought to know.
More than 100 years later, there is still much discussion concerning the ethical boundary between the necessary and appropriate preparation of a witness, on the one hand, and improper coaching, on the other hand.2 Lawyers are, of course, duty bound to provide competent, zealous representation, and should at all times loyally promote a client’s cause within the bounds of the law.3 However, no attorney may knowingly offer false or perjured testimony, or knowingly assist a client or witness to do so.4
But what do these broad propositions of ethical behavior tell us when it comes to the particulars of witness preparation. Consider the following examples:
During preparation for trial, an ID witness expresses uncertainty as to her ability to identify the accused assailant. The prosecutor thereupon informs her, truthfully, that the defendant has also been identified by several other victims.
An accused murderer is about to meet with his lawyer for the first time. At the outset of the interview, the lawyer informs his client that the State of Michigan recognizes only 4 legal defenses to murder, and describes them. The defendant quickly concludes that his best bet is to rely on temporary insanity – one of the 4 possibilities and indeed the one that becomes the successful defense.5
The defendant, an anaesthesiologist who allegedly committed medical malpractice, initially responds to his lawyers’ practice questions in a cold, detached, clinical manner. However, with considerable encouragement from his team of lawyers, the witness adopts a warmer, human tone, displays more emotion, describes the decedent, not as the patient, but by her first name, and employs his attorneys’ characterizations almost verbatim to describe events.6
A lawyer prepares a draft affidavit in support of a motion for her client’s review and signature. The client, relying on the lawyer’s expertise, cursorily reviews the affidavit and signs it.
Lawyers for class claimants in asbestos litigation, in a written memo to the clients prior to their depositions, provide detailed information about asbestos products, set forth a list of health symptoms that may enhance damages, anticipate potential questions, and suggest possible answers.7
In preparing a witness for a deposition, a lawyer shows the witness a document, signed by the witness, which flatly contradicts a practice response that the witness has just given. The lawyer and the witness discuss the document and try to figure out a way to creatively reconcile the inconsistency.
In preparing the plaintiff to testify in a negligence case, the lawyer and client discuss damages. Because the plaintiff is embarrassed to bring it up, the lawyer reminds the plaintiff that loss of sexual desire or function is a perfectly legitimate element of damages if it was caused by the defendant’s actions.
Learning From Examples
Each of the foregoing examples could be dissected and analyzed at length in this context. And there are undoubtedly may other examples of seemingly close-to-the-line witness preparation. So, what is an ethical lawyer to do, given that the Code and Rules do not provide very precise guidance?8 Are there any more specific governing principles?
Let me suggest that whether or not governing precepts have been officially codified, they do in fact exist. While it may not be possible to articulate a precise test to fit all circumstances, at bottom the question a lawyer must ask herself, as a professional and moral advocate, is whether the coaching – a word I use advisedly – has in any way changed the substance of the testimony, or merely changed the style and presentation. Ethics rules (and criminal codes) forbid only presenting evidence the lawyer knows is false, whereas helping a witness to offer the most persuasive case is in fact the lawyer’s job. The distinction is between aiding a witness to make a point clearly (to bring out the truth) versus changing (i.e. facilitating or orchestrating) a witness’s presentation so that the testimony is either false or creates a false impression. The lawyer’s duty in preparing a witness is to ensure that the witness is most effective in relating only that which the witness has seen or heard as to an event the witness has been through, or a transaction the witness has been involved in. Particular wording of testimony can even originate with the lawyer so long as the substance of the ultimate testimony, as far as the lawyer knows or ought to know, remains truthful and not misleading.9
However, clear signs of danger exist when a witness in the process of preparation begins to provide statements that are inconsistent with information the witness has previously given, or uniformly accedes, without discussion, to the lawyer’s version of what must have happened, or what the lawyer thinks the witness must have observed. When a lawyer begins to write the script in this manner, the line has been crossed.
In Comment b to Section 176 of the Restatement of the Law Governing Lawyers (Tent. Draft No. 8, 1997), the American Law Institute (ALI) has proposed a list of safe harbor practices which the ALI deems consistent with a lawyer’s ethical obligation to prepare a witness beforehand to provide truthful testimony favorable to the lawyer’s client. These nine points are about as specific as commentators get in describing in concrete terms appropriate and ethical conduct in connection with witness preparation:
Preparation consistent with the rule of this Section may include the following: 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;10 reviewig 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 180(1)(a)).
One view of this comprehensive listing of what is permissible is that it swallows most inhibitors and prohibitions. A better view, I think, is that properly used it helps in focusing trial lawyers to sensitively deal with what must be seen as a difficult, recurring practice problem. In sum, a lawyer may use the preparation process to enhance a witness’s presentation of events, not to substantively alter it. Lawyers who cannot adhere to that distinction risk serious trouble with the courts and the disciplinary system by violating a fundamental tenet of professional ethics precluding the knowing proffer of false or perjurious testimony.
Reprinted with permission from the May 25, 2000 edition of the New York Law Journal ©2000 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – firstname.lastname@example.org or visit www.almreprints.com.
(1) 82 N.Y. 161 (1880)
(2) See, e.g., Richard Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989); Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of Coaching 1 Geo J. Legal Ethics 389 (1987); Fred C. Zacharias and Shaun Martin, Coaching Witnesses, 87 Kentucky L. J., 1001 (1999).
(3) See: DR 6-101(A) and DR 7-101(A) of the New York Lawyer’s Code of Professional Responsibility; Model Rule (MR) 1.4(b) of the ABA Model Rules of Professional Conduct.
(4) See DR 7-102(A)(4)(6)(7); MR 1.2(d), 3.3(a)(4), 3.4(b), 8.4(b)(d).
(5) Anatomy of a Murder (Columbia Pictures, 1958)
(6) The Verdict (20th Century Fox, 1982).
(7) This case is extensively discussed in a Special Report that appeared in the ABA/BNA Lawyer’s Manual on Professional Conduct, by Joan C. Rogers, entitled Witness Preparation Memos Raise Questions About Ethical Limits, pp. 48-54, Vol. 14, No. 2 (2/18/98).
(8) One prominent ethicist observed that The Code fails to impose any significant limit on a lawyer’s conduct in preparing his own witness for trial, with the result that the propriety of the lawyer’s conduct must be defined primarily by criminal laws dealing with subornation of perjury. Bruce Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687, 705 (1991).
(9) See D.C. Bar Formal Op. 79 (1979). Neither the nature of nor the intent underlying the lawyer’s conduct has significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.
(10) With respect to discussing with a witness the applicability of law to the events in issue, the Nassau County Bar Association, in opinion 94-6 (1994), has explicitly condoned the practice of informing the client as to the applicable legal principles before getting the client’s version of the facts, as long as the lawyer in good faith does not believe that she is participating in the creation of false evidence.
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