December 13, 2011 Articles

Ethical Preparation of Witnesses for Deposition and Trial

Attorneys must balance their duty to clients with their ethical obligations to the court

By Erin C. Asborno

James Fenimore Cooper originated the phrase "horse-shedding the witness," referring to attorneys who lingered in carriage sheds near the old courthouse in White Plains, New York, to rehearse their witnesses. James W. McElhaney, McElhaney's Trial Notebook at 99 (4th Ed. 2005). The term "horse-shedding," or "wood-shedding," describes conduct that may come close to ethical boundaries, while the term "witness preparation" is generally understood to be a professional obligation. Id. at 100; see also Model Rules of Prof'l Conduct R. 1.1. The central question is how to determine the ethical line between "developing testimony so it will be effective and suborning perjury by telling the witness what to say." McElhaney's Trial Notebook, supra, at 108. In England, it is generally improper for barristers to talk directly to clients or witnesses, thus alleviating the problem for the barrister and placing the responsibility on the solicitor. Here in the United States, we act as both barristers and solicitors; therefore, we must balance our duty to clients with our ethical obligations to the court. Id.

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