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AIC-Trial: Direct Examination: Coaching v. Preparing

This Guide, prepared by the Robert M. Spire American Inn of Court, presents resources for conducting a direct examination.

Coaching v. Preparing

The sources included in this section discuss both ethical duties of an attorney with regard to interviewing and preparing a witness and procedural mechanisms an attorney may use to properly prepare a witness for trial.

A. Nebraska Rules of Professional Conduct:

1. Rules:

a. § 3-503.3. Candor toward the tribunal: If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

b. § 3-503.4. Fairness to opposing party and counsel:  A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

c. Availability:  Supreme Court Rules, Neb. Judicial Branch (last modified Sept. 30, 2011).

B. Nebraska Telephone Seminar: Ethics of Working with Witnesses:

1. Description:

a. This telephone seminar worth 1.0 hours of MCLE Professional Responsibility credit will discuss the ethics of working with and preparing witnesses.

b. Include topics: (1) drawing the ethical line between paying for time versus testimony, (2) conferring with witnesses about their testimony during breaks, (3) ethical duty to correct misstatements of witnesses, (4) online and social media posting of videotaped depositions to embarrass opponents, and (5) ethics of using inadvertently produced information.

c. First Run Broadcast: November 10, 2011, 12:00 C.T. (60 minutes).

d. Cost: $89.00.

e. Presenter:  John M. Barkett, Shook, Hardy & Bacon LLP (Miami).

2. Additional information.

C. Paul D. Friedman, The Ethics of Witness Preparation, LAWYERSUSA (Feb. 25, 2008)

1. This 2008 LawyersUSA article provides an example of an attorney trying to coach a witness who was being challenged because his testimony differed from his signed and verified statement. 

2. The article offers a concrete way to correct the coaching mistake in the example provided and suggests tips to help an attorney properly prepare a witness.

D. Restatement (Third) of Law Governing Lawyers (2000).

1. Description:

a. § 116:  Interviewing and Preparing a Prospective Witness:  A lawyer can interview a witness for the purpose of preparing the witness to testify, but the lawyer cannot unlawfully obstruct another party’s access to the witness, unlawfully induce or assist a witness to evade or ignore process obligating the witness to testify, or request a person refrain from voluntarily giving relevant testimony.

b. § 120: False Testimony or Evidence:  A lawyer may not counsel or assist a witness to testify falsely or otherwise offer false evidence, and if the lawyer offers testimony as to a material issue of fact and comes to know of its falsity, the lawyer must attempt to remedy the situation.

2. Availability:

a. Westlaw, REST 3d LGOVL §§ 116, 120.

b. LexisNexis, Restat 3d of the Law Governing Lawyers §§ 116, 120.

c. Creighton Law Library, KF311.A9 R43.

E. John W. Allen, Emerging from the Horse-Shed, and Still Passing the Smell Test:  Ethics of Witness Preparation and Testimony, LAWYER TRIAL FORMS (last visited October 6, 2011).

1. After setting forth the general rules for interviewing and preparing a prospective witness, the article introduces a technique called “the Lecture,” used by attorneys to coach clients so that a client will not know that he has been coached but the lawyer can still assert that he has not done any actual coaching.

2. The article suggests that the Lecture involves three elements: the law, the words, and the focus.  Noting that courts disagree on what is permissible in the Lecture, the article emphasizes that a lawyer’s concern should always be for the truth to be told. 

3. The article seeks to remind attorneys that ethical rules heavily govern their interactions with a witness.

F. Shannon M. Awsumb, Avoiding a Career-Ending Mistake: The Line Between Witness Preparation and Coaching, THE HENNEPIN LAWYER, Feb. 20, 2007.

1. The article discusses a real-life situation in which an attorney crossed the line separating acceptable witness preparation from improper witness coaching in violation of ethical rules and an explicit court order.

2. Specifically, the attorney provided a copy of the transcript from the first day of the trial to a potential witness in violation of a sequestration order.  An investigation revealed that the lawyer had emailed portions of the trial transcripts to several witness sequestered pursuant to the court’s order. 

3. In addition to possible criminal charges and disbarment, the attorney faced a civil suit alleging that she “illegally coached witnesses and otherwise attempted to shade and alter evidence before the . . . court . . .”

G. The Professional Code of the American Society of Trial Consultants, ASTC (last visited Oct. 6, 2010).

1. The Code provides professional standards and practice guidelines for witness preparation. Additionally, the Code includes a commentary with additional sources addressing witness preparing.

2. More specifically, the Code considers professional standards and practice guidelines of witness preparation in terms of compliance with rules and laws, duties to clients, duties to witnesses, and methods.

H. Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995).

1. This Article focuses on the ethics of coaching cooperative lay witnesses.

2. As the article suggests, “witness coaching” is conduct by a lawyer that alters a witness's story about the events in question. Witness coaching usually occurs when a lawyer is interviewing a witness or preparing a witness to testify.

3. The article discusses ethical concerns regarding the lawyer’s relationship with the witness in both stages.

4. By separating “coaching” into degrees, the Article distinguishes between overt coaching, covert covering, and unintentional coaching.  In its closing, the article suggests how to avoid unintentional coaching a witness.

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