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Litigation News

Litigation News | 2024

Case Dismissed for Recorded Witness Coaching

Michelle Hayes

Summary

  • Attorney is sanctioned after he was recorded during a remote trial recess.
  • The plaintiffs’ attorney told the court that he would not speak to the first witness, the alleged victim of a slip and fall.
  • Not only did the attorney speak with the witness but also coached his client on the location of the fall.
Case Dismissed for Recorded Witness Coaching
seksan Mongkhonkhamsao via Getty Images

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Remote proceedings present unique ethics challenges. In one recent cautionary tale, a trial court sanctioned an attorney and dismissed his clients’ case after court software recorded him coaching his witness during the trial. ABA Litigation Section leaders suggest that attorneys become familiar with the relevant technology and use proper methods to refresh a witness’s recollection.

Simple Case with a Technological Component

In Hernandez v. La Fortaleza, Inc., the plaintiffs brought a premises-liability suit against a restaurant after an alleged slip and fall. The case proceeded to a trial by way of remote technology. Before trial, the court and attorneys discussed logistics. The plaintiffs’ attorney advised the court that the alleged victim would be the first witness and that he would “not talk to her about her testimony at any time during the testimony, even if [they] br[oke] for lunch.”

When the plaintiff was called to testify, the trial judge advised her that she must be alone in the room with the exception of her co-plaintiff husband. During her testimony, in response to repeated questioning, she was unable to describe the location of the fall other than “on my way,” even when asked to use a cursor to point to the location in a photograph of the scene.

At this point, the judge interjected and advised that no one in the room with the plaintiff could speak with her and asked whether anyone was doing so. The plaintiff answered that her husband was speaking with her. The judge instructed that he stand behind her and remain quiet. The plaintiffs’ attorney explained that she was having trouble moving the cursor. Defense counsel objected that the testimony concerned a critical issue and no witness coaching was tolerable. The trial court then reiterated its instruction regarding speaking with the witness. The trial court recessed for lunch and instructed the attorney to resolve the cursor issue.

A Surreptitious Recording

During the recess, court software recorded a conversation between the plaintiffs and their attorney. During the conversation, the attorney instructed the plaintiff-witness to identify a particular location in the photograph near a bench as the location where the fall took place. When the virtual trial resumed, defense counsel moved for a mistrial, advising that the plaintiffs’ attorney’s microphone was on during recess and he “listened to [the plaintiff's attorney] coaching the witness with the witness’ husband.” Counsel also moved for a dismissal of the plaintiffs’ complaint with prejudice. After listening to the recording, the trial court granted a mistrial.

During a hearing on the dismissal motion, one of the judge’s paralegals testified that during the conversation, the plaintiff-witness told her attorney she could not recall where she fell. The attorney did not rebut this testimony but argued it was clear from the witness’s deposition that she knew the location of her fall.

The trial court dismissed the plaintiffs’ complaint with prejudice, finding the plaintiff’s attorney’s invitation to testify that the fall occurred at a particular location, when the witness had no independent recollection, was too prejudicial to allow a jury to decide the case. According to the trial court, “the well of information that could be presented to the jury has been forever poisoned.” The court further observed that counsel’s “directive was to create a falsity and commit fraud” on the court and ordered the plaintiffs’ counsel to pay the defendant’s fees and costs associated with the trial and with the defense motion. On appeal, the Superior Court of New Jersey affirmed the decision of the trial court.

Old Problems in a New Context

When participating in virtual proceedings, attorneys should remember they “risk waiving the attorney-client privilege or breaching the duty of confidentiality under the disciplinary rules (Model Rule 1.6) if anyone else is listening or recording,” says Jeanne M. Huey, Dallas, TX, Co-Chair of the Litigation Section’s Ethics & Professionalism Committee. Best practice is to not “talk to your client, co-counsel, witness, paralegal, or anyone else while logged into a court’s virtual platform unless you want what you are saying heard and/or recorded,” she adds. Huey also recommends avoiding confidential conversations in Zoom breakout rooms for the same reason.

“The attorney could have refreshed his client’s recollection in open court,” remarks Judge Lucy Inman (Ret.), Raleigh, NC, a member of the Section’s Ethics & Professionalism Committee. A good way to refresh recollection is to “refer to deposition testimony and confirm the witness’s answers are unchanged,” explains Inman, a former North Carolina trial and appellate judge. Best practice “is to conduct a detailed client interview early on in the case and have the client draw a map of the accident scene,” she says. The witness’s own drawing or notes can be used to refresh recollection before trial or during trial if necessary.

Attorneys “have a duty to be competent in the technology we use—and that includes the technology used by the court,” reminds Huey. “This duty is part of our duty of competence under ABA Model Rule 1.1, Comment 8 which provides: ‘To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . ..’” “In this case, the [trial court’s] ‘backup’ recording system was running, and so not only was plaintiffs’ counsels’ conversation with his clients overheard by others—it was recorded,” explains Huey.

“In light of the attorney’s promise to the trial court that he would not speak with his client during her testimony, even on a lunch break, counsel should have advised the trial court as soon as he realized he needed to discuss with his client how to place the cursor on the screen,” says Inman. “Refreshing recollection becomes witness coaching when an attorney gives the witness the answers,” she adds. “Do not put words in your client’s mouth,” she cautions in conclusion.

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