Woodshedding, Coaching, or Tampering?

But the line between “preparation” and coaching or even tampering sometimes can become blurred. The federal statute against witness tampering, 18 U.S.C. §1512, addresses many forms of witness intimidation and improper persuasion. At one extreme are threats or acts of physical force and killing, illustrated by the criminal defendant in federal court in Brooklyn who was accused (registration required) of making a throat-slitting gesture to a prosecution witness who was testifying during trial in November 2017.

The statute is not limited to acts of physical violence, however. It extends to any act of intimidation, threat, corrupt persuasion, or misleading conduct intended to influence, delay, or prevent testimony or to withhold, destroy, or conceal evidence. A headline-grabbing example of this was described in Special Counsel Robert Mueller’s superseding indictment in early June 2018, charging Paul Manafort with witness tampering and suborning perjury by contacting two potential witnesses through phone and encrypted text messages concerning activities related to the matters for which he had previously been indicted and was facing trial. The federal judge revoked Manafort’s bail and ordered him to jail pending trial.

Although most often seen in criminal cases, problems can arise in civil cases too, particularly when conducted during the “heat of battle.” Witness contacts that might seem mundane and ordinary under other conditions can take on a different appearance as trial looms or is under way. Suddenly, charges of witness tampering can move from the theoretical to the real.

This was seen in two product liability medical device and pharmaceutical trials in the fall of 2017, where complaints about witness contacts erupted in the middle of trial and escalated to accusations of witness intimidation and tampering. In a federal court case in the DePuy Pinnacle hip implant litigation, a sales representative who had been contacted by defense counsel for a telephone interview apparently was unnerved by the request and contacted a doctor who was scheduled to testify at trial to caution him of possible repercussions from testifying. In a state court case in Philadelphia involving the blood thinner product Xarelto, the defendant’s sales representative called upon the plaintiff’s treating doctor shortly before the doctor’s deposition, after which the doctor apparently gave testimony surprisingly favorable to the defendant.

In both cases, plaintiffs’ counsel learned of these contacts on the eve of or during trial, whereupon they promptly complained. The courts and the parties then diverted significant resources in the middle of trial to investigating, interviewing, and deposing witnesses, and the federal court even involved the Federal Bureau of Investigation (registration required) in the efforts. Ultimately, neither the federal nor state court (registration required) found an impropriety had occurred, and the courts did not permit the jury in either case to hear evidence about the contacts.

A different form of improper witness contact involves compensating witnesses for their time and expenses in connection with testifying. Most states permit “reasonable” compensation to witnesses for time and expenses incurred in preparing to testify, although some jurisdictions place restrictions on compensation for actual courtroom testimonial time. The problem arises when the compensation is (or appears to be) for the substance of the testimony. In July 2017, a Nevada attorney had his law license suspended for offering to pay a witness $7,000 for his “honest testimony” in support of certain facts and threatening the witness with personal liability and “the legal implications of perjury” if he testified the other way. Regardless of whether the testimony sought by the lawyer ultimately proved to be truthful, the Nevada Supreme Court held, it was improper to offer payment contingent on the substance of the testimony. In re Discipline of Callister, No. 70901 (Nev. July 25, 2017).

In April 2018, the Fifth Circuit reversed a judgment for the plaintiff in a different DePuy hip implant case for, among other things, statements made by the plaintiff’s counsel in closing argument contrasting the plaintiff’s two “unpaid” medical experts with the defendants’ retained experts. It turned out that the plaintiff’s counsel had donated $10,000 to one expert’s private school alma mater before the trial and collectively sent the two experts $65,000 after trial. The Fifth Circuit wrote that the pretrial donation to one expert’s favored charity, the other expert’s expectation of being paid, and the post-trial payments to both experts were “individually troubling, collectively devastating.” Christopher v. DePuy Orthopaedics, Inc., 2018 U.S. App. LEXIS 10476 (5th Cir. Apr. 25, 2018). On the other hand, the Fifth Circuit has condoned “aggressive” efforts by lawyers to change a witness’s view of the facts. See Resolution Tr. Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993). In the end, the hallmark must be the reasonableness of the attorney’s actions.

Section 116 of the Restatement (Third) of the Law Governing Lawyers provides a nonexclusive list of 10 permissible ways in which lawyers can prepare witnesses to testify:

1. Invite the witness to provide truthful testimony favorable to the lawyer’s client.
2. Discuss the role of the witness and effective courtroom demeanor.
3. Discuss the witness’s recollection and probable testimony.
4. Reveal to the witness other testimony or evidence that will be presented and ask the witness to reconsider the witness’s recollection or recounting of events in that light.
5. Discuss the applicability of law to the events in issue.
6. Review the factual context into which the witness’s observations or opinions will fit.
7. Review documents or other physical evidence that may be introduced.
8. Discuss probable lines of hostile cross-examination that the witness should be prepared to meet.
9. Rehearse testimony.
10. Suggest a choice of words that might be employed to make the witness’s meaning clear.

All of this was summarized in more succinct and colorful words written over a century ago: The lawyer’s job is to “extract the facts from the witness, not to pour them into him, to learn what the witness does know, not to teach him what he ought to know.” In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880).

David C. Kent is with Drinker Biddle & Reath, LLP, in Dallas, Texas.

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