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American Bar Association - Defending Liberty, Pursuing Justice

WINTER 2010

Vol. 6, No. 2

 

LITIGATION

 

Preparing Your Witness in the Electronic Age

By Lisa Horvath Shub

Presenting a witness to testify can be a nail-biting experience for both lawyer and witness. Despite hours of preparation exploring the facts, ensuring that the witness is familiar with all the relevant documents, and warning your witness about the tricks opposing counsel may play, the witness, having his or her own strengths, weaknesses, thoughts, and opinions, has to answer the questions. When the witness takes the stand, your assistance to him or her is limited to objecting or attempting to halt improper questions and taking your witness on direct to ensure that the facts are presented more accurately if you believe one of the answers has left a misleading impression. But the facts are the facts. If you have not done homework newly necessitated by the electronic age before you present your witness, some facts about your witness that you did not know may surface because he or she neglected to tell you about them.

Your witness may not have a thorough understanding of how electronic information can play a role in the facts of his or her case. Or your witness may wrongly perceive what facts will be deemed relevant. Nonetheless, you can minimize surprises if you impress upon the witness the diligence that is likely to be marshaled to unearth information about him or her, the wealth of information that can be discovered, and how it may be used.

Mining the Internet

A Google search is always a good place to begin. The most obvious search term is your witness’s name, coupled with his or her city and state to narrow the search. However, you may also get some hits if you include search terms as “lawsuit” or “verdict” to provide some background regarding the witness’s litigation history. Including search terms that describe a witness’s profession or a known interest may also yield results.

Internet social networking sites and personal blogs can be illuminating resources. Some firms have assistants and librarians regularly search such sites and blog postings as part of their duties. The amount of personal information posted on the Net is staggering to most lawyers, at least to those over 30. Posting personal information has become commonplace, and more than several anecdotes have been published describing witnesses (and jurors for that matter) who have posted information related to their litigation. Ask your witness if he or she has a MySpace or Facebook page. Ask if he or she has a blog. If so, review them diligently. Advise your witness that even if material has been removed, someone may have copied and forwarded it to friends, so that it may never really be “off” the Net. Make sure your witness understands that if he or she doesn’t help you find any such information, the other side will find it. It is far better to find out what is out there than to have your witness blindsided on the stand.

Skating through cross-examination without a question about his or her blog or Net postings doesn’t mean your witness is out of the woods. Although consulting outside sources will be against the court’s instructions, jurors oftentimes take it upon themselves to see what they can find out about a witness. If your opposing counsel did not find information, your witness should understand that a juror still might do so. The juror may use that knowledge privately in his or her decision making. Indeed, in some jurisdictions, courts allow jurors to pose questions to witnesses. If the witness has a website, tell him or her to expect questions related to those postings.

Does your corporate representative witness know what is on its company website? Has he or she explored how the company’s products or services are advertised online? Online promotional materials commonly vary from the hard copy. If your witness knows what promotional claims are made, he or she will be better positioned to investigate the basis for those claims and provide the testimony necessary to support those statements if opposing counsel attempts to attack them.

For experts, in addition to testifying histories and articles authored, credentialing information—or lack thereof—can often be found electronically through professional certification websites. Nothing is more disheartening than discovering that an expert in whom you have invested much time and energy has let their board certifications lapse, especially if they have represented otherwise. Check out your witness’s CV, and use the online certification websites to verify well before your expert takes the stand.

Numerous more specific websites, including state and county court sites, state department of public safety sites, Lexis-Nexis, and Westlaw provide access to public records. Even if your witness tells you nothing is floating around cyberspace, “trust but verify.” It is worth your time to check the sources that might exist, just to make sure.

E-mail, Metadata, and Beyond

While most of us now know that “deleting” your email does not necessarily delete a file altogether, witnesses may not be as knowledgeable. Conversely, they may know email can be found but think that opposing counsel will not expend the effort to retrieve that information. Enlightening your witnesses to the realities of electronic discovery—and a party’s obligation to produce documents, even if in electronic form—may cause them to be more candid. It may also lead them to word their email more appropriately in the future. Question your witness about email communications. Make sure you and the witness are aware of any applicable document retention policies and practices. Encourage them to search their memories, and of course, work with you to collect any such documents you are obligated to produce during discovery. Pretending email does not exist will not make it go away. Knowing what is there will help your witness be prepared to answer any questions.

If your witness transmitted documents electronically to the opposing party, did the documents contain metadata that may indicate changes in position and thinking? If you have a document intensive case, is that information that you need to review? Perhaps. But it is likely worth your time to find out if the parties ever communicated in this way. Opposing counsel may have questions related to the dealings of the parties that are not readily apparent in the final correspondence. Ask the questions. Ascertain whether it is worth the time and expense to explore further.

The amount of information available through electronic media gets larger every day. Explore with your witnesses, and without them, what may be out there. Then use that information to counsel your witnesses before they raise their right hands to testify. Minimizing surprises will make your witnesses more comfortable and hopefully ensure that they are able to more calmly—and therefore more persuasively—tell their side of the story.

Lisa Horvath Shub is a partner at Fulbright & Jaworski L.L.P. in San Antonio, Texas. She practices in the litigation section with an emphasis on pharmaceutical, mass tort, and toxic tort matters. Shub also has significant experience handling insurance bad faith, insurance defense, products liability, fiduciary duty, and contractual disputes. She can be reached at lshub@fulbright.com.

 

“Preparing Your Witness in the Electronic Age,” by Lisa Horvath Shub, 2009 TortSource, p.1. ©2009 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

 

© Copyright 2009, American Bar Association.