July 31, 2018 Articles

Woodshedding, Coaching, or Tampering?

The line between "preparation" and coaching (or even tampering) can sometimes become blurred

By David C. Kent

Interviewing witnesses and preparing them to testify is an activity almost taken for granted by civil trial attorneys. As the Maryland Supreme Court has stated, “[a]ttorneys have not only the right but also the duty to fully investigate the case and to interview persons who may be witnesses.” Maryland v. Earp, 571 A.2d 1227, 1234 (Md. 1990). Indeed, Professor John Applegate, of Indiana University School of Law, has written: “The practical literature uniformly views the failure to interview witnesses prior to testimony as a combination of strategic lunacy and gross negligence.” Applegate, “Witness Preparation,” 68 Tex. L. Rev. 277, 287–88 (1989).

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