Set Boundaries with Your Client
A lawsuit is an emotional experience for a client, and they often want to presuppose what the law means or should mean. Remind your client that your job is to advocate for them zealously and show the court that the law supports a judgment in your client’s favor. Your client’s job is to tell their side of the story truthfully. The client is paying you, the attorney, as the legal expert. Having this conversation with your client early on in your relationship allows you to provide emotional support and gain your client’s trust, allowing for better client control. Setting these boundaries with your client helps set the stage for thoroughly preparing your client for testimony during the later stages of their case.
You Cannot Coach Your Client
When preparing your client to testify, the most important advice is to ensure your client tells the truth. A client is bound to their statements given under oath, and they must be truthful when giving those statements. This means you cannot coach your client to give the desired testimony. Coaching your client, which is generally understood as offering or suggesting false testimony, is an ethical violation of Rule 3.4 of the Model Rules of Professional Conduct. Not only is it unethical to coach your client, but it is also your duty to advise your client of the consequences of giving inconsistent or false testimony.
Review your jurisdiction’s local rules to ensure you are not committing ethical violations related to preparing your client to testify. Jurisdictions also dictate the extent of communications between counsel and their client while the client is under oath and their testimony has not concluded.
Prepare Your Client for Their Testimony
Whether or not your client has given testimony before, it is a disservice to your client if you do not prepare them prior to their testimony in the instant case. Begin your preparation by helping your client understand why they are giving their testimony.
Particularly with depositions, I will meet with my clients the day before the deposition. During this meeting, I explain that taking depositions allows us to get a deponent’s testimony nailed down now so we know the parties’ stories as we develop our case and prepare for trial. The opposing side will want to do the same.
Tips to Help You Prepare Your Client to Testify
Review Discovery
I will review discovery responses and document production with my client during testimony preparation. During this review, I invite my client to brainstorm questions they anticipate being asked and to think about their truthful responses to these questions. This often prompts the client to ask if they can bring notes to their deposition. My advice is this: If you bring notes to your deposition, opposing counsel will probably ask you about your notes. Therefore, it is better not to use notes and truthfully say, “I don’t know” or “I can’t recall.”
Answer the Question Asked
Another piece of advice I will give a client is that “less is more.” If an attorney wants additional information, they know how to ask the question to get that information. Further, I explain that they only need to answer what is being asked. Think about the question. If it is a yes or no question, answer with a yes or no. If an explanation is needed, the attorney will ask for an explanation. I stress that my client does not need to volunteer information. Volunteering information opens the door for a line of questioning for which the client did not prepare.
Be Thoughtful and Take Your Time
I also advise my clients to take their time answering questions during their testimony. When I or opposing counsel ask my client a question, they do not need to have an answer immediately ready. This day is about the client and their testimony—it is not sudden death. Maintaining composure and ensuring they answer the questions appropriately are more important than wrapping up testimony as soon as possible.
If You Are Telling the Truth, You Can’t Say the Wrong Thing
Clients often worry that they won’t answer questions the way they think their attorney wants them to. My response is that they just need to tell the truth. If I need to re-direct my client’s testimony, I know how to ask the appropriate questions to get us there. The client’s only job is to show up, take their time answering what is being asked, and be truthful.
Your Ethical Duty Is to Prepare, Not Coach, Your Client
To set the stage for adequately preparing your client to testify, you must set boundaries early on with your client. Once it is time to prepare your client for their testimony, you should have adequate client control to ensure they can remain truthful and composed throughout their testimony. Ethically, you have a duty to prepare your client, but you cannot coach your client. To avoid ethical violations and to ensure proper preparation, I recommend that clients review discovery, anticipate lines of questioning, focus only on what is being asked, and, most importantly, remain truthful. This thorough preparation will help you maintain client control and prepare your clients to testify whilst avoiding coaching your clients and committing ethical violations.
