Presenting a live 90 ‐ minute webinar with interactive Q&A Ethical Challenges in Preparing Ethical Challenges in Preparing Witnesses and Working with Experts Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses WEDNES DAY, JANUARY 25, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Today s faculty features: Teresa Rider Bult, Partner, Constangy Brooks & Smith , Nashville, Tenn. Lucia Coyoca, Partner, Mitchell Silberberg & Knupp , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Ethical Challenges in Preparing Ethical Challenges in Preparing Witnesses and Working with Experts: Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses Teresa Rider Bult Lucia E . Coyoca Constangy, Brooks & Smith, LLP Mitchell, Silberberg & Knupp, LLP Nashville, Tennessee Nashville, Tennessee Los Angeles, Los Angeles, CA CA www.constangy.com www.msk.com tbult@constangy.com lec@msk.com 5
Outline of Topics to be Discussed Outline of Topics to be Discussed • Applicable Ethical Rules pp • Preparation versus coaching • Ethical Issues in Witness Prep Ethical Issues in Witness Prep – Clarifying testimony inaccuracies – Use of mistakenly produced information Use of mistakenly produced information – Conferring with witness during recess • Ethical Issues in Working with Expert Ethical Issues in Working with Expert Witnesses • In-house counsel perspective In house counsel perspective 6
7 Applicable Ethical Rules
Applicable Ethical Rules L Lawyer’s Duty in Preparing Witnesses ’ D t i P i Wit • ABA Model Rule 1.3 -- Diligence g – “A lawyer shall act with reasonable diligence and promptness in representing a client.” • Comment to Rule: – “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. i di t li t' d – “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf behalf. – “A lawyer is not bound, however, to press for every advantage that might be realized for a client.” 8
Applicable Ethical Rules Lawyer’s Duty in Preparing Witnesses Lawyer’s Duty in Preparing Witnesses – the #1 rule of any deposition the #1 rule of any deposition – ABA Model Rule 3.3(a) - Candor Toward The Tribunal • A lawyer shall not knowingly. . .make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. . . Or offer evidence that the lawyer knows to be lawyer Or offer evidence that the lawyer knows to be false.” – Disciplinary Rule 7-102(A): • A lawyer, “shall not . . . Participate in creation or preservation y , p p of evidence when he knows or it is obvious that the evidence is false” or “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” 9
Ethical Challenges with Witness 10 Preparation ti P
Ethi Ethical Challenges l Ch ll Preparation vs Coaching Clarifying testimony inaccuracies Clarifying testimony inaccuracies Use of mistakenly produced info Conferring with witness during recess C f i ith it d i Expert Witness Issues In House Considerations 11
Ethical Challenges Preparation vs Coaching Preparation vs Coaching 12
Ethical Challenges: Preparation vs Coaching Preparation vs Coaching • Some take the position that any witness “preparation” di t distorts the search for truth and is thus improper. t th h f t th d i th i • But witnesses entering a strange playing field – need to be prepared on how to deal with it. p p • Witnesses’ credibility and testimony could be impacted by a trained attorneys’ questioning – If they don’t understand how the process works If they don t understand how the process works. • Essentially being asked to enter a new country and need to know how to speak the language – Lawyers are translators L t l t » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 13
Ethical Challenges: P Preparation vs Coaching ti C hi • “A lawyer who did not prepare his or her witness for testimony having had an opportunity to do so would not testimony, having had an opportunity to do so, would not be doing his or her professional job properly.” District of Columbia Bar , Ethics Opinion No. 79 (1979), p. 139. • As long as focused on developing and clarifying truthful • As long as focused on developing and clarifying truthful testimony, such preparation may include the lawyer: • Being “persistent and aggressive in presenting [counsel’s] theory of the case.” RTC v. Bright , 6 F.3d 336, 342 (5 th Cir. 1993) • Suggesting language to the witness that might aid the testimony, DC Opinion 79, p. 139 • Suggesting substantive points to the witness, DC Opinion 79, p. 139 • Conducting “practice examination or cross-examination,” DC g p , Opinion 79, p. 140. » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 14
Ethical Challenges: P Preparation vs Coaching ti C hi – In short, “Both witness and the lawyer share a , y responsibility for ensuring the truth of the witness’s testimony.” » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 15
Ethical Challenges: P Preparation vs Coaching ti C hi Typical Preparation Questions: yp p Can you show a witness a transcript of someone else’s testimony? Can You Tell the Witness the Theory of the Case? Can you provide witnesses with a list of documents to review? Can you tell them a specific fact they Can you tell them a specific fact they didn’t know before deposition? 16
Ethical Challenges: Preparation vs Coaching Preparation vs Coaching Can you show a witness a transcript of someone else’s testimony? l ’ t ti ? – Short Answer: Yes, for depositions. • Caution: – other side will try to make it sound like you reviewed testimony to “get stories straight.” – don’t use the deposition testimony as a lazy way to prepare your witness. – Best practice: don’t show them the whole transcript; just review questions from prior deposition to prepare them for potential questions questions. • Trial is a different story – they may invoke “the rule” (sequestration/ exclusion of witnesses). – Rule 615 of Federal Rules of Evidence 17
Ethical Challenges: P Preparation vs Coaching ti C hi Can You Tell the Witness the Theory of the Can You Tell the Witness the Theory of the Case/ Company’s Legitimate, Nondiscriminatory Reason? – Yes Yes – important for witness to understand big picture. important for witness to understand big picture • Caution: – Want them to articulate in their own words • Same response for all witnesses make it look less credible. • Learned from Ibarra case that “term planting” can be sanctionable. 18
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