The ethics of witness preparation is a critical subject for any litigator, but it’s too often a grey area in which attorneys and witnesses can go astray.
An upcoming webinar, Ethics of Witness Preparation: Best Practices for All Attorneys, to be held on September 28, hopes to counter that. The webinar will be led by Steven C. Bennett, a partner at Park Jensen Bennett who focuses on complex domestic and international commercial litigation and arbitration, and will address such topics as witness coaching versus preparation, and protection of privilege. Legal Executive Institute spoke to Mr. Bennett about what attendees should expect from the event.
Legal Executive Institute: What topics around witness preparation are you going to explore in this webinar?
Steven Bennett: The topic is witness preparation — not strategies for witness preparation per se, but more the ethical limitations on it. I’m going to talk about goals for witness preparation, for depositions or trial. But the bulk of the discussion will be on what the ethical limitations are.
Legal Executive Institute: Is there a reason why you chose this topic?
Steven Bennett: If you’re a litigation lawyer, every encounter with a witness raises these issues. As we get more and more ethics refinement in areas like technology, it becomes an even more interesting topic. There was a recent case in New Jersey where a lawyer was sending texts to a witness during the course of a deposition, telling the witness “you’re doing well” and so on. Naturally, questions arose as to whether this was improper.
Legal Executive Institute: Some of your discussion will focus on the ethics of paying for witness testimony.
Steven Bennett: If a witness has to miss a day of work, or they get paid by the hour and aren’t compensated by their employer, then it might be appropriate to cover them for the eight hours of work they missed. But what if someone’s not on salary? What if they’re a salesperson or someone on commission, how do you compensate them then? And under what circumstances might someone claim that you’re influencing the witness by doing so?
Legal Executive Institute: Is there a timeliness about this issue?
Steven Bennett: It’s one of continuing importance. People who assume they know all the rules can get themselves in trouble. Witnesses who assume they know all the rules in particular can get themselves in trouble. There’s also the issue of supervisory responsibility. If someone at your firm just got out of law school and they are defending their first deposition, what are they allowed to do? If you’re responsible for supervising a junior attorney, this presentation is the kind of thing you’d want to send them to, as a refresher.
But it’s often not a refresher! I took a course on professional responsibility in law school and we never touched on this issue. To my knowledge, few law schools teach anything like this. They may teach about trial advocacy, where the issue of preparation might come up, but its ethical issues aren’t a featured topic. So there are myths about what’s permissible and what’s not, which can get you in trouble.
Legal Executive Institute: Does an example come to mind?
Steven Bennett: There was a case in the 8th Circuit Court in which a lawyer, during the course of a deposition, repeatedly objected to questions, prepping the witness by telling them “you don’t have to answer that” or “you can ask the examiner to rephrase the question.” And the Court concluded that the witness was like a puppet, constantly saying “I don’t understand, please rephrase.” So the deposition turns out to be garbage, and the trial court judge gets more than a little miffed about the whole thing. The 8th Circuit ended up reversing an order of sanctions, but you don’t want that kind of thing on your record.
Legal Executive Institute: What are some takeaways that attendees should expect from your webinar?
Steven Bennett: You need to know the ethical line between responsibly preparing a witness and influencing and coaching a witness. Lawyers who think they can give a witness a script and have the witness memorize that script — which may have nothing to do with what the witness truthfully would say — that’s highly problematic. More than that, it could get a lawyer into serious trouble.