November 05, 2018 civil procedure

From Witness Prep to Dep: Temper Your Inner Coach

There is a fine coaching threshold that all lawyers must toe when prepping a witness for deposition

By Brian A. Zemil

There is a coach in all of us. Despite this fact, courts require lawyers to suppress their coaching voices to prevent improper witness influencing that changes the facts. There are fine contours of the coaching threshold that all lawyers must toe when preparing witnesses, making deposition objections, and consulting deponents during breaks.

Witness preparation is the first coaching crossroad for lawyers. Although every lawyer has a duty to prepare a witness to testify, the Supreme Court tells us to “respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” A lawyer must, therefore, “extract the facts from the witness, not pour them into him,” says a New York appellate court. ABA Model Rule of Professional Conduct 3.4(b) also forbids assisting a witness to testify falsely, and comment 1 to Model Rule 3.4 emphasizes how the prohibition on “improperly coaching witnesses” secures “[f]air competition in the adversary system.”

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