Presenting a live 90-minute webinar with interactive Q&A Witness Preparation Strategies Pursuing Aggressive Advocacy While Avoiding Ethical Violations for Woodshedding THURSDAY, OCTOBER 4, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Teresa Rider Bult, Partner, Constangy Brooks & Smith , Nashville, Tenn. Coby Cohen, Assistant General Counsel - Litigation & Employment, Knowledge Universe , Portland, Ore. 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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Witness Preparation Strategies: Pursuing Aggressive Advocacy and Avoiding Ethical Violations Teresa Rider Bult, Constangy, Brooks & Smith, LLP tbult@constangy.com Coby Cohen, Knowledge Universe - U.S. ccohen@klcorp.com 5
Theory of Witness Preparation 6
Theory of Witness Preparation • Some take the position that any witness “preparation” distorts the search for truth and is thus improper • But witnesses entering a strange playing field – they need to be prepared to deal with it • Witnesses’ credibility and testimony could be impacted by a trained attorney’s questioning – If they don’t understand how the process works – If they aren’t actively listening to the question • Essentially, witnesses are being asked to enter a new country and need to know how to speak the language – The witnesses’ lawyers are their translators » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 7
Theory of Witness Preparation – “A lawyer who did not prepare his or her witness for 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 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 Opinion 79, p. 140. » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 8
Theory of Witness Preparation – In short, “Both the witness and the lawyer share a responsibility for ensuring the truth of the witness’ testimony.” » Small, Daniel L., Preparing Witnesses , A Practical Guide for Lawyers & Their Clients , American Bar Association Publication, 2004. 9
The Basics of Witness Preparation 10
Keep the Main Issue the Main Issue: Primary Purpose of Witness Preparation • Witnesses need to: – Have fading memories refreshed – Become comfortable with the strange setting – Understand legal concepts – Understand obligations (to tell the truth) and “rights” in the deposition 11
Your (the Attorney’s) Job: • Know all the facts and legal issues in the case • Anticipate what questions the other side will ask • Educate yourself on opposing counsel and his/her style • Read through all prior deposition transcripts in the case – has this witness’ name been mentioned? • Touch every document in the case (if possible) to make sure you can show the witness all relevant documents/walk through them 12
Key Points to Instruct Your Witness in Deposition Prep: • TRUTH: Obligation to Tell the Truth, and Nothing Discussed in Preparation is Intended to Instruct Otherwise • Tell the Witness NOT to Volunteer Information – Give the shortest, most accurate answer – “Yes” and “No” are appropriate answers – no need to elaborate • Tell the Witness to Ensure He/She “Understands the Question” – Watch for the tricky question – Listen to the question – Ask for rephrasing when appropriate • Does not mean to ask what the definition of “is” is – Pause before you answer 13
Key Points to Instruct Your Witness in Deposition Prep: • Instruct the Witness to Never Guess the Answer – Beware of the foibles of memory – Don’t be afraid to say “I don’t know” or “I don’t remember” – Don’t take an attorney’s statement as to what happened as true unless you know it to be true – Understand attorneys are very good at piecing together facts to undermine your faulty “memory” • Tell the Witness NOT to Speculate – Distinguish Between What You KNOW and what you ASSUME – Don’t Play the Dates and Documents Game • The Witness Must Know this is Not an Endurance Test – Ask to take a break (as an attorney, make sure they take a break periodically) – Particularly true for lengthy and document-intensive depos 14
Key Points to Instruct Your Witness in Deposition Prep: • Make sure they understand how to handle objections • Make sure they know to listen to your objections/ pause before they answer • Prepare them for what to do when documents are presented to them • What if the attorney asks personal questions, like prior convictions, divorces, roommates? • Can they correct mistakes? If so, how? – Attorney questioning at end – Errata sheet (but must discuss drawbacks of this) – During deposition – can say, “I think I misspoke” • Talk through logistics: – How to dress – What to bring (nothing) – What to expect if there is a video deposition (always check the notice to see if they may have a video camera there) 15
BEST ADVICE FOR ATTORNEYS PREPARING WITNESSES: “The rule is, never try to teach a pig to sing. It doesn’t work, and it annoys the hell out of the pig.” 16
Client v. Non-Client 17
Client v. Non-Client • Clients: attorney-client privilege is almost always going to apply • What you tell your client is not generally discoverable • Non-clients – can spill the beans on everything about your prep session – Make sure they are prepared for the following obvious questions: • “Are you represented by counsel today?” • “What did you talk about with the attorney?” • “Did the attorney instruct you to do anything?” – Answer: “Yes, of course, to tell the truth.” 18
Client v. Non-Client • If you are representing a company, think about level of employee you are preparing – Manager – probably a “client” – Hourly employee or “supervisors” – have to consider context • UpJohn Co. v. United States, 449 U.S. 383 (1981) – Rejected “control group” test for determining attorney -client privilege for corporate employees • “in the corporate context, it will frequently be employees beyond the control group . . . who will possess the information needed by the corporation's lawyers.” • “Middle -level -- and indeed lower-level -- employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.” – Attorney-client privilege/ work doctrine appears to apply if the advice concerns “matters within the scope of the employees' corporate duties,” and employees themselves are “sufficiently aware that they [are] being questioned in order that the corporation [can] obtain legal advice.” 19
Client v. Non-Client • What about former employees? – Probably no privilege unless set up representation with them as well (and joint representation can be tricky) – Depends on jurisdiction – Most states say that privilege does not apply to former employees – question may be whether the witness has ability to bind the corporation 20
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