“Put Me In Coach: I’m Ready To Prepare [Our Witness]”

A Refresher On Witness Preparation and Discussion of Ethics

By: Katryna L. Kristoferson and David Paul Horowitz | December 19, 2023

Introduction

The film “Absence of Malice” revolves around a reporter (played by Sally Field) publishing a story leaked to her by a local prosecutor stating that an alcohol wholesaler (played by Paul Newman) was being investigated by that office and suggesting he was involved in wrongdoing. It contains the memorable line:

“Suppose you picked up this morning’s newspaper and your life was a front-page headline… And everything they said was accurate… But none of it was true…”

The idea of something being true, but inaccurate, is not just movie fodder. It often arises in litigation, specifically in witness testimony. We are raised to believe that trials are a search for truth, a concept that seems more a quaint notion with each passing year in practice.

Yet we are officers of the court, sworn to uphold the law, and there is a delicate balance to be struck in terms of crafting a narrative in litigation that is both truthful and advantageous while avoiding crossing any ethical lines. And make no mistake: as lawyers we coach our clients on how to testify, and failing to do so would be malpractice. Done properly, witness preparation can serve both the ends of justice and advance our client’s cause. Done improperly, attorneys put themselves in ethical jeopardy, and risk adverse consequences to their clients and non-party witnesses.

When during deposition preparation does coaching cross over from permissible to impermissible?

Really, the answer depends on what, and how you do it. A few months ago the ABA Standing Committee On Ethics and Professional Responsibility[i] issued a formal opinion on this issue. The crux of the opinion: “Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b).” Huh? A violation of “at least” the model rules? Always interesting the way things are couched in the legal world.

Certainly this should come as no surprise. Why issue the opinion now?

“The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously ‘coach’ witnesses in new and ethically problematic ways.”

Not too long ago in this column[ii] we covered the topic of uncivil deposition conduct, which in some instances resulted in sanctions and/or rose to the level of misconduct by attorneys. Those situations involved attorney conduct with opposing parties or witnesses. Continuing on the topic of misconduct and improper behavior, this month we cover proper witness preparation, and some examples of what not to do.

ABA Formal Opinion 508: The Ethics of Witness Preparation

In the ABA Opinion, the Committee cited to the TV Show, Deadwood for an example:

Jack McCall: Well, I’m a hard case for you, counselor. And no mistake, everyone in there saw me shoot him.

Lawyer: If you’ll let me set our strategy, I don’t think we’ll dispute what people saw.

Jack: Now, I guess you’re here to break me out.

(Lawyer chuckles)

Lawyer: Son, did James Butler Hickok ever kill a — relative of yours?

Jack: James Butler Hickok?

Lawyer: Wild Bill Hickok. Did he ever kill a brother of yours or — or the like?

Jack: A brother?

Lawyer: I’m asking you if what happened in that saloon was vengeance, for the death of a family member? Possibly a brother in Abilene. Or the like.

Jack: (Jack smirks, cocks head pensively) A brother in Abilene . . . .

(Lawyer smiles, pats Jack twice on the knee, and exits).[iii]

TLDR;[iv] The attorney suggests that his client committed murder to avenge his brother, a plausible defense in this 1870s Western drama. While a bit dramatic, of course, there is a fine line between ethical witness preparation and rule-violating conduct. And of course, everyone knows not to blatantly coach their client … or do they?

Flagrant Fouls

Clearly not. In a recent a memorandum accompanying a Public Reprimand by the Board of Bar Overseers in Massachusetts, an attorney was reprimanded for “coaching” his client during her deposition.[v]

The Board noted the following conduct by the attorney:

During his client’s deposition, which took place remotely, the respondent repeatedly coached his witness on answering questions. The respondent and his client were seated in the same conference room, both wearing masks over the objection of the lawyer who took the deposition from another location. During the fifth hour the deposition, opposing counsel overheard the respondent provide an answer to the client, which she repeated. Confronted by opposing counsel at the time, the respondent denied that he had fed an answer to his client. When opposing counsel subsequently reviewed the videotape of the deposition, he noticed about fifty instances when he could hear the respondent surreptitiously provide his client with answers. Most of the answers were “yes” or “no” or “I don’t recall.” The client repeated the answers whispered by the respondent.[vi]

At a hearing, following a motion for sanctions by opposing counsel, the attorney “acknowledged coaching his client and blamed his conduct on frustration with opposing counsel’s examination, which he described as unnecessarily intrusive into sensitive topics with limited relevance to the case. In addition, he was concerned about his client’s well-being, since she suffered from both mental and physical health challenges and had been anxious about the deposition.”[vii]

Some additional details not included in the memorandum: the deposition took place during Covid, (April 2021),[viii] and both attorney and client wore masks during the Zoom deposition, (yes, opposing counsel attempted to object).[ix]

In the memorandum, the Board noted that the case was unprecedented, and there are no prior disciplinary cases is Massachusetts “based solely on a lawyer coaching a witness during a deposition.”[x] The memorandum cited a few circumstances involving attorneys coaching witnesses at deposition in other states:

both involved aggravating factors. In Florida Bar v. James, 329 So. 3d 109 (Fla. 2021), a respondent was suspended ninety-one days for texting instructions to a witness during a telephone deposition, in violation of the Florida equivalents to Rules 3.4(a) and 8.4(d). That case is distinguishable because the respondent also made deceptive statements to a judge in an attempt to deny his misconduct, and he refused to acknowledge the wrongful nature of his actions. In Arizona, a disciplinary judge approved a stipulation to a sixty-day suspension where a lawyer used an electronic chat program to coach a witness. Matter of Claridge, PDJ 2021-9088 (Ariz. Disp. Com. 2021). That case is also distinguishable because the conduct occurred at trial and was intended to deceive a tribunal, and because the lawyer initially refused to acknowledge to the judge that his conduct was wrongful. See also In re Ryan, Case No. 14-0-06405 (Cal. 2018) (ninety-day suspension for attorney who passed notes to client during deposition and submitted falsified version of note to judge in subsequent sanctions hearing).[xi]

N.B. Both the James and Claridge cases, the sanctioned attorneys’ unsophisticated handling of technology (separate and apart from their unethical conduct) compounded their troubles. In James, counsel inadvertently sent text messages to his adversary which were intended for his client. In Claridge, counsel used a chat function to communicate with his client during a Court hearing, the Court later saw the messages.

Perhaps the most important takeaway from the Massachusetts case was the warning of the Board to the bar regarding the ethical guardrails:

In sum, case law instructs that the sanction for the respondent’s misconduct should be a public reprimand or a suspension of some length. Based on the unique facts of the case, we will impose a public reprimand, acceding to the parties’ stipulation. Among the factors are the respondent’s immediate and candid acknowledgement of his misconduct, his remorse, his motivation to protect a vulnerable client, and the abusive and uncivil nature of opposing counsel’s questions. We also recognize that the misconduct was not premeditated but arose in the moment as an emotional (albeit inappropriate) aspiration to protect his client. We emphasize these circumstances to alert the bar that future cases of deposition misconduct, and all forms of discovery abuse, may not be viewed as indulgently as this case.[xii]

What to Do?

Discussing what not to do can be more fun, but it is worth at least noting ethical conduct the ABA Opinion highlighted. Like many legal strategies, some of these points come with caution (in the form of footnotes which are omitted here for the sake of space):

remind the witness that they will be under oath
emphasize the importance of telling the truth
explain that telling the truth can include a truthful answer of “I do not recall”
explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition
suggest proper attire and appropriate demeanor and decorum
provide context for the witness’s testimony
inquire into the witness’s probable testimony and recollection
identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony
review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts
identify lines of questioning and potential cross-examination
suggest choice of words that might be employed to make the witness’s meaning clear
tell the witness not to answer a question until it has been completely asked
emphasize the importance of remaining calm and not arguing with the questioning lawyer
tell the witness to testify only about what they know and remember and not to guess or speculate
familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information[xiii]

Let’s return to that “at least” standard referenced by the ABA. Reading between the lines, the conduct noted in the memorandum as permissible permits lawyers to walk right up to the line of where coaching a witness morphs from permissible to impermissible See “suggest choice of words that might be employed to make the witness’s meaning clear.” As with many things in the legal world, the rules have some room for interpretation.

Common advice to witnesses during preparation is that many, if not all, questions can be answered in one of five ways: yes, no, I don’t know, I don’t remember, or could you repeat your question. This type of advice is straightforward, and unlikely to get anyone in trouble.

Where the shades begin to gray is in the discussion of specific answers to questions. Suggestion that there are different ways to phrase or state things, falls within, at least as far as the ABA is concerned, ethical conduct. So, perhaps Jack McCall can claim that the murder was done in the name of vengeance, or your client doesn’t have to blatantly agree to a fact that goes against their case. However, while it may not bear repeating, we’re here to say it again, directing a witness on how to answer a question is not ethical conduct.

Conclusion

Witness preparation is a critical tool in the lawyer’s toolbox, which must be undertaken seriously and in accordance with the rules. We are unaware of New York ethics opinions on this topic. Make certain that you are not the first.

[i] American Bar Association, Standing Committee On Ethics and Professional Responsibility, Formal Opinion 508 “The Ethics of Witness Preparation,” August 5, 2023.

[ii] “Incivility is Not Dead: Lessons on What Not to Do,” NYLJ, August 2023.

[iii] The Trial of Jack McCall, Deadwood, season 1, episode 5 (Home Box Office, Inc. 2010).

[iv] Too long didn’t read…

[v] Bar Counsel v. Jeffrey M. Rosin, Esq., Public Reprimand No. 2023-12 (Commonwealth of Massachusetts Brd. Of Bar Overseers, 2023).

[vi] ABA Formal Opinion 508, p. 2.

[vii] In opposition to the counsel for plaintiff’s motion, the reprimanded attorney noted the client “was met at the deposition with nearly 8 hours of questioning, including multiple snide remarks, threats, and off-color commentary and side-comments and mutterings by Attorney Homans. (See Note 1 supra) The undersigned had to ask and remind

Attorney Homans to be professional multiple times, as the video transcript reflects. See https://masslawyersweekly.com/wp-content/blogs.dir/1/files/2021/09/Rosin-opposition.pdf

[viii] Lawyer accused of feeding answers to his client in Zoom deposition faces possible sanction, ABA Journal, October 2021.

[ix] “Boston MP in hot water for allegedly ‘feeding’ answers in Zoom depo,” Mass Lawyers Weekly, September 2021.

[x] The Board did cite a series of cases “involving discovery violations generally have resulted in public reprimands. Matter of Sweet, 38 Mass. Att’y Disc. 511 (2022) (public reprimand where respondent failed to respond to discovery requests even after motion to compel was granted, in violation of Rules 3.4(c), 8.4(d) and 8.4(h)); Matter of Reisman, 29 Mass. Att’y Disc. 556 (2013) (public reprimand where respondent advised client he could scrub discoverable information from laptop, in violation of Rules 1.1, 1.4 and 3.4(a); Matter of Baghdady, 25 Mass. Att’y Disc. 26 (2009) (public reprimand for failure to correct false deposition testimony by witness and false notarization of interrogatories, in violation of Rules 1.2, 8.4(c), and 8.4(d)); Matter of Diamond, 12 Mass. Att’y Disc. R. 85 (1996) (public reprimand where respondent repeatedly failed to present client for a scheduled deposition, and disobeyed court order to appear with an interpreter, in violation of predecessors to rules 3.4(c) and 8.4(d)).

[xi] Bar Counsel v. Jeffrey M. Rosin, Esq., Public Reprimand No. 2023-12 (Commonwealth of Massachusetts Brd. Of Bar Overseers, 2023).

[xii] Id. (emphasis added).

[xiii] ABA Formal Opinion 508, pp. 3-4.

Please see ALM.com for the full printed article.