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The do's and don'ts of coaching corporate witnesses

The nuances of witness coaching are illustrated by the movie Anatomy of a Murder, in which Jimmy Stewart delivers "the lecture" to his client who is charged with murder. The lecture is described as "an ancient device that lawyers use to coach their clients so the client won't quite know he's been coached, and the lawyer can still preserve the face-saving illusion that he hasn't done any coaching," said Erin Asborno, former special counsel for Forman Perry Watkins Krutz & Tardy LLP.

Witness coaching was the focus of a panel moderated by Asborno for a recent Section of Litigation-sponsored CLE program, "How to Ethically Prepare Corporate Witnesses for Deposition and Trial. "

Witnesses should not be provided "script memos" in which they are coached on what to say or what not to say, Asborno said.

First, make sure you have done the requisite preparation, said panelist Marcia Narine, a visiting assistant professor of law at the University of Missouri-Kansas City School of Law. "The D.C. Bar ethics opinion No. 79 says if you don't prepare your witness for testimony, you're not doing your professional and ethical duty," she said.

The ABA Model Rules of Professional Conduct prohibit several types of activities:
  • A lawyer may not counsel a client in conduct that is criminal or fraudulent. "In other words, you can't counsel how to cheat on taxes and not get caught," said Yvette Ostolaza, co-head of Weil, Gotshal & Manges' commercial litigation practice.
  • A lawyer may not knowingly counsel or assist a witness to testify falsely or offer false evidence.
  • A lawyer cannot offer evidence that he or she knows to be false.
  • A lawyer shall not counsel or assist a witness to testify falsely.

The cases Geders v. United States (1976) and Hall v. Clifton Precision (1993) offer a number of guidelines on improper influence of witnesses, Narine said. For example, "sometimes you'll see improper influence during depositions where you are influencing your witness not to answer the question by giving them hints, by saying things like, ‘If you know …' or ‘If you recall. ' Those are the hints that you're giving your witness to not testify truthfully or to change their answers. "

In addition, witnesses should not be provided "script memos" in which they are coached on what to say or what not to say, Asborno said. "Preparing a witness to give a rehearsed answer is not proper if the purpose is to mislead the finder of fact or to frustrate the inquiring party from obtaining legitimate discovery," she said.

Asborno offered these key points to remember for deposition preparation:
  • Work closely with in-house counsel.
  • Litigation counsel, in-house counsel and the witness should know the facts, circumstances and applicable law.
  • Focus on issues central to the case.
  • Prepare for questions about industry or company litigation issues.
  • Review documents with the witness.
  • Prepare the witness for hypothetical questions.
  • Challenge witness recollection through mock examination.
  • Address witness demeanor and presentation.

For more advice on preparing corporate witnesses for deposition or trial, click here to access the CLE program.

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