Ethical Challenges in Preparing Ethical Challenges in Preparing - - PowerPoint PPT Presentation

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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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNES DAY, JANUARY 25, 2012

Today s faculty features:

Teresa Rider Bult, Partner, Constangy Brooks & Smith, Nashville, Tenn. Lucia Coyoca, Partner, Mitchell Silberberg & Knupp, Los Angeles

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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 Constangy, Brooks & Smith, LLP Lucia E . Coyoca Mitchell, Silberberg & Knupp, LLP

Nashville, Tennessee Nashville, Tennessee www.constangy.com tbult@constangy.com Los Angeles, Los Angeles, CA CA www.msk.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

6

In house counsel perspective

Applicable Ethical Rules

7

Applicable Ethical Rules

L ’ D t i P i Wit Lawyer’s Duty in Preparing Witnesses

• 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

• pposition, obstruction or personal inconvenience to the lawyer,

and take whatever lawful and ethical measures are required to i di t li t' d vindicate a client's cause or endeavor. – “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

– ABA Model Rule 3.3(a) - Candor Toward The Tribunal

the #1 rule of any deposition

• A lawyer shall not knowingly. . .make a false statement of fact
• r 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

• f 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 P ti Preparation

10

Ethi l Ch ll Ethical Challenges

Preparation vs Coaching Clarifying testimony inaccuracies Clarifying testimony inaccuracies Use of mistakenly produced info C f i ith it d i Conferring with witness during recess 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 t th h f t th d i th i distorts the search for truth and is thus improper.

• 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

L t l t – Lawyers are translators

» Small, Daniel L., Preparing Witnesses, A Practical Guide for Lawyers & Their Clients, American Bar Association Publication, 2004.

13

Ethical Challenges:

P ti C hi

• “A lawyer who did not prepare his or her witness for

testimony having had an opportunity to do so would not

Preparation vs Coaching

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 (5th 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 ti C hi

– In short, “Both witness and the lawyer share a

Preparation vs Coaching

, 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 ti C hi

Typical Preparation Questions:

Preparation vs Coaching

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

Can you show a witness a transcript of someone l ’ t ti ?

Preparation vs Coaching

else’s testimony?

– Short Answer: Yes, for depositions.

• Caution:

–

• ther 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).

17

– Rule 615 of Federal Rules of Evidence

Ethical Challenges:

P ti C hi

Can You Tell the Witness the Theory of the

Preparation vs Coaching

Can You Tell the Witness the Theory of the Case/ Company’s Legitimate, Nondiscriminatory Reason?

Yes important for witness to understand big picture – Yes – 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

Ethical Challenges:

P ti C hi

Can you provide witnesses with a list of

Preparation vs Coaching

Can you provide witnesses with a list of documents to review?

– Yes, but question is whether the witness has to testify about it/ produce the list testify about it/ produce the list. – Technically, witness has to produce what he/she used to prepare for deposition. Some jurisdictions take approach that if it isn’t – Some jurisdictions take approach that if it isn t substantive information, it is attorney-client privileged/ attorney work product. – If document refreshes recollection it is fair game – If document refreshes recollection, it is fair game. – Videos preparing witnesses are good.

19

Ethical Challenges:

P ti C hi

Can you tell them a specific fact they didn’t

Preparation vs Coaching

Can you tell them a specific fact they didn t know before deposition?

– Yes, but again, be careful you aren’t planting Yes, but again, be careful you aren t planting memories. – Need to make sure you’re just generally informing th f b k d f t t ti th t th them of background facts, not suggesting that they need to testify to the fact. – Watch for witness who says, “I’ll say whatever you Watch for witness who says, I ll say whatever you want me to say.”

20

Ethical Challenges:

P ti C hi

• Other Preparation Ethical Issues to think

Preparation vs Coaching

Other Preparation Ethical Issues to think about:

– 30(b)(6) deposition? Different questions/ 30(b)(6) deposition? Different questions/ thoughts/ coaching – Client or nonclient? Privilege or not? C e t o

• c e t

ege o

• t

– Prepping multiple witnesses together – Other people in room Other people in room

21

BEST ADVICE FOR ATTORNEYS PREPARING WITNESSES: PREPARING WITNESSES:

“The rule is, never try to teach a pig to sing It doesn’t work and it annoys the

• sing. It doesn t work, and it annoys the

hell out of the pig.”

(anonymous, but generally attributed to Mark Twain)

22

Ethical Challenges Ethical Challenges

Clarifying Testimony Inaccuracies

23

Clarifying Testimony Inaccuracies

Can you Tell Witness to “Pay Attention”? Can YOU ask for rephrasing? Can YOU ask for rephrasing? What if you know witness misspoke? C E t Sh t t Cl if ? Can you use Errata Sheets to Clarify? What objections can you make to clarify?

24

Ethical Challenges:

Clarifying Testimony ABA Ci il Disco er Standards Clarifying Testimony ABA Civil Discovery Standards

Rule 18 – Conferring with the Witness

• An attorney should not initiate a private

conference ith the deponent d ring the conference with the deponent during the deposition except to determine whether a privilege should be asserted or to enforce a privilege should be asserted or to enforce a court-ordered limitation on the scope of discovery

25

discovery.

Ethical Challenges:

Clarifying Testimony Clarifying Testimony

Can you tell Witness to “pay attention” or “don’t speculate”? J i di ti l ti h k – Jurisdictional question – check your jurisdiction. Generally polite dialogue is okay unless it is – Generally, polite dialogue is okay unless it is clear you are suggesting answer to the witness witness.

26

Ethical Challenges:

Clarifying Testimony

Can you ask opposing counsel for rephrasing f ti b d ’t d t d?

Clarifying Testimony

• f question because you don’t understand?

– May also be jurisdictional.

• Some jurisdictions say such an objection is improper. E.g.,

Philli M f t H T t C N 92 Phillips v. Manufacturers Hanover Trust Company, No. 92 Civ.8527, 1994 U.S. Dist. LEXIS 3748 (S.D.N.Y. March 29, 1994).

– Opposing Counsel may protest it doesn’t matter if YOU Opposing Counsel may protest it doesn t matter if YOU understand – only witness

• Response: I assumed if I didn’t understand the question, they

wouldn’t either.

– Sincere questions may be fine - - just can’t be suggesting answer to the witness (speaking objections).

27

Ethical Challenges:

Clarifying Testimony

Wh t if k it i k ?

Clarifying Testimony

What if you know your witness misspoke?

• Several options, depending on the witness, case,

jurisdiction, and opposing counsel: j , pp g

1) Speak up and tell attorney on the record you know that date,

• etc. are wrong and clarify.

2) Take a break and ask the witness if they misspoke. If they did, ) y p y have them clarify the answer when they come back in.

• Be prepared to answer question of what happened at the break/ to

address ethical/ coaching issues

3) St i t k i th t th ti i ’t t i l d 3) Stay quiet, knowing that the question isn’t material and you don’t want to taint the testimony 4) Ask follow up questions at the end of the deposition to clarify.

28

Ethical Challenges:

Clarifying Testimony

Can

• Use Errata Sheets to Clarif ?

Clarifying Testimony

Can you Use Errata Sheets to Clarify? –Sometimes N t N M h tt –Note New Massachusetts case –May have to pay for costs of re-deposing –Typically can use changes to impeach witness later S A k L R i A ti l ( il –See Arkansas Law Review Article (email tbult@constangy.com)

29

Ethical Challenges:

Clarifying Testimony Clarifying Testimony

What objections can you make during

• Check out your jurisdiction – some jurisdictions, you

l bj t t f

What objections can you make during deposition?

can only object as to form.

• ABA Civil Discovery Standards Rule 18 –

– In objecting to or seeking to clarify a pending question, an j g g y p g q , attorney for a deponent should not include any comment that coaches the witness or suggests an answer.

• Typically can also object as to lack of foundation (any

yp y j ( y

• bjection which can be cured at deposition).

– Educate witness about listening to you objections.

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Ethical Challenges:

Use of Mistakenly Produced Info

• ABA Model Rule 4.4 (b):

Use of Mistakenly Produced Info

ABA Model Rule 4.4 (b):

– A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was reasonably should know that the document was inadvertently sent shall promptly notify the sender.

• Duties seemingly conflict with duty to zealously

represent client represent client

• Outcome depends on state

– Courts generally determine if there was intention to i tt / li t i il b l i b t waive attorney/client privilege or balancing between interests – Some courts have gone so far as to say metadata ’t b i d & d

31

can’t be reviewed & used.

Ethical Challenges:

Conferring with witness during

Can you coach a witness during breaks at a

g g recess

• Can you coach a witness during breaks at a

deposition or trial?

– Trial – it is clear you CANNOT talk to witness who is till “ th t d” d i b k still “on the stand” during a break. – Depositions – less clear

• Most attorneys take position break conversations are

tt li t i il d attorney-client privileged

• One case: depositions are like trial, and once the deposition

begins, there should be no further questions which could taint the testimony

• Reality: attorneys are loathe to call other attorneys out

(turnabout is fair play?).

32

Ethical Challenges:

Conferring with witness during

• What if another attorney has clearly coached

g g recess

a witness during a break? – Point out on the record a break was taken and the testimony changed shortly after the break the testimony changed shortly after the break – Ruins witness credibility if there isn’t a good explanation explanation

• Best practice:

– Stick to “atta boy” conversations during breaks Stick to atta boy conversations during breaks – Tell witnesses only what you would not mind them testifying to when they returned from

33

y g y break

Ethical Issues in Working with Experts Working with Experts

34

Ethical Issues in Working with Experts Ethical Issues in Working with Experts

Resources:

– Downey, Michael, Ethical Issues Associated With Expert Witnesses DRI Professionalism Perspectives 2007 Witnesses, DRI Professionalism Perspectives, 2007,

http://www.imakenews.com/ethics/e_article001006655.cfm?x=0,b11,w

35

Working with Experts Working with Experts

• Federal Rule of Evidence 702:

– If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence

• r to determine a fact in issue a witness qualified as
• r to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an

• pinion or otherwise if (1) the testimony is based
• pinion or otherwise, if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods witness has applied the principles and methods reliably to the facts of the case.

36

Working with Experts Working with Experts

• General Rules for Experts from 702:

General Rules for Experts from 702:

– FRE Rule 702 is “broadly phrased” -- includes “experts” such as physicians, physicists, architects, bankers, and landowners – Different from lay witnesses - an expert may testify about subjects within their specialized testify about subjects within their specialized knowledge “in the form of an opinion or

• therwise.”

– There may also be consulting (nontestifying) experts.

37

Working with Experts (i l i E li h) (in plain English)

• Who's an Expert?

p

– Someone who knows something beyond common experience who can help you prove something you couldn't prove otherwise couldn t prove otherwise.

• When to Use an Expert?

– Should be involved in a case as early as possible: y p

• technical analysis,
• preparing for deposition,
• during discovery,

during discovery,

• analyzing documents in settlement and mediation

discussions, and

• summing up complex facts for jurors.

38

g p p j

Ethical Issues with Experts Ethical Issues with Experts

• Issues with Experts:
• Issues with Experts:

a) Paying for Expert Testimony b) Confidentiality, Privilege/ Work Product Issues ) y, g c) Conflicts d) Competency Issues ) C hi th E t ( E t C hi Oth ) e) Coaching the Expert (or Expert Coaching Others) – See Ethical Issues Associated With Expert Witnesses See Ethical Issues Associated With Expert Witnesses

by Michael Downey, DRI Professionalism Perspectives, 2007,

http://www.imakenews.com/ethics/e_article001006655.cfm?x=0,b11,w

39

Paying for Expert Opinion or T i

Ethical Issues with Experts

Paying for Expert Testimony

Testimony

• Rule 3.4(b) of the Model Rules:

a lawyer shall not "counsel or assist a witness to testify falsely or offer an

Paying for Expert Testimony

– a lawyer shall not counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." – Guidance states:

• [I]t is not improper to pay a witness's expenses or to compensate an expert

witness on terms permitted by law The common law rule in most jurisdictions is witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

• Rule 7-109(C) of the Model Code:

( )

– A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:

• Expenses reasonably incurred by a witness in attending or testifying.
• Reasonable compensation to a witness for his loss of time in attending or

testifying.

• A reasonable fee for the professional services of an expert witness

40

Paying for Expert Opinion or T i

Ethical Issues with Experts

Paying for Expert Testimony

Testimony

• General Rules:

Paying for Expert Testimony

– Fee cannot be contingent upon outcome of case or court’s acceptance as expert witness – Expert is entitled to fair and reasonable compensation for providing expert testimony – Should agree upon fee in advance – Remember experts often will be asked at trial about Comp.

• Consider effect of question on jury.
• Even if you don't ask plaintiff's experts what they are being paid, they

can ask yours.

• Consider a prior agreement on whether sides will raise
• Consider a prior agreement on whether sides will raise.
• If you ask, often wise to focus on total compensation rather than an

hourly rate.

• Have your experts bring their time records in case they need to

41

refresh their memories.

Ethical Issues with Experts

Confidentiality Confidentiality ABA M d l R l f P f i l C d t

• ABA Model Rule of Professional Conduct

1.6:

– A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent the disclosure client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted representation or the disclosure is permitted by [certain other exceptions spelled out in ABA Model Rule 1.6](b).

42

Ethical Issues with Experts

Confidentiality Confidentiality

• Improper Disclosure of Information to an Expert
• Improper Disclosure of Information to an Expert

could:

– Result in disciplinary ethical violation p y – Waive attorney-client privilege or attorney work- product doctrine

43

Ethical Issues with Experts

Confidentiality Confidentiality

• Attorney Work Product Waiver

– Depends on if Expert is testifying or consulting – Consulting Expert: FRCP 26 – a party must prove “exceptional circumstances” to obtain discovery exceptional circumstances to obtain discovery

• Only Two Exceptions:

1) consulting expert reports on something lost & cannot be restored and duplicated; or restored and duplicated; or 2) consulting expert prepares crucial basis for the testimony

• f a testifying expert.

Testifying Expert: Generally Discoverable – Testifying Expert: Generally Discoverable.

• FRCP 26(a)(2)(B) requires written report & basis for opinions,

including “data or other information considered by the witness in forming the opinions ”

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in forming the opinions.

Ethical Issues with Experts

Confidentiality Confidentiality

• Attorney Work Product Waiver

– Consulting Expert: FRCP 26 – a party must prove “exceptional circumstances” to obtain discovery

• Only Two Exceptions:

Only Two Exceptions:

1) consulting expert reports on something lost & cannot be restored and duplicated; or 2) consulting expert prepares crucial basis for the testimony 2) consulting expert prepares crucial basis for the testimony

• f a testifying expert.

– Testifying Expert: Generally Discoverable.

• FRCP 26(a)(2)(B) requires written report & basis for opinions
• FRCP 26(a)(2)(B) requires written report & basis for opinions,

including “data or other information considered by the witness in forming the opinions.”

45

Ethical Issues with Experts

Confidentiality Confidentiality

• Attorney Client Privilege Waiver

– Testifying Expert Witness:

• Almost anything shared with testifying witness will waive

privilege

– Consulting Expert Witness:

• Most communications will waive privilege
• EXCEPT if expert is “necessary or highly useful” to

p y g y interpretation of communication – E.g., accountant interpreting accounting concepts United States v Kovel 296 F 2d 918 (2d Cir 1961) – United States v. Kovel, 296 F.2d 918 (2d Cir. 1961),

46

Ethical Issues with Experts

CONFLICTS ISSUES CONFLICTS ISSUES

• Disqualification of Expert
• “a drastic measure which courts should hesitate to

impose except when absolutely necessary.” Chamberlain Group v. Interlogix, Inc., No. 01 C 6157, 2002 WL 653893 (N.D. Ill. Apr. 19, 2002).

– Standards for disqualification of expert due to conflicts depends on circumstances: conflicts depends on circumstances:

• Commerce Industrial Insurance Co. v. E.I. DuPont

de Nemours & Co. (In re Maldon Mills Indus., Inc.), ( ) 275 B.R. 670 (D. Mass. 2002).

47

Ethical Issues with Experts

CONFLICTS ISSUES CONFLICTS ISSUES

• Standards for disqualification of expert:
• Disqualification based on expert switching sides.
• Objectively reasonable to believe confidential relationship existed?

If fid ti l i f ti di l d t t?

• If so, was confidential information disclosed to expert?
• Expert affiliated with expert for opposing party.
• Requires evidence that substantive information about case

q exchanged between affiliated experts.

• Necessary to preserve “integrity of judicial system.”
• Necessary to preserve “integrity of judicial system ”
• Necessary to preserve integrity of judicial system.
• Infrequent, nebulous

48

Ethical Issues with Experts

CONFLICT ISSUES CONFLICT ISSUES

• Considered misconduct to hire another witness
• Considered misconduct to hire another witness
• r expert just to create a conflict with the expert

(witness tampering)

49

Ethical Issues with Experts

COMPETENCY ISSUES COMPETENCY ISSUES

• Lawyers are responsible for ensuring expert is

testifying truthfully & reasonably

Sili P d t Li bilit Liti ti 398 F S 2d 563

• Silica Products Liability Litigation, 398 F. Supp. 2d 563

(S.D. Tex. 2005)

• Court felt doctors created an “phantom epidemic” for lawsuit

p p unreported to governmental agencies

50

Ethi l Ch ll i Wit Ethical Challenges in Witness Prep: Prep: Case Examples

51

Moussaoui Trial Moussaoui Trial

• March 2006 attorney Carla Martin

March 2006, attorney Carla Martin sanctioned in Virginia for providing copies

• f trial transcript to pending witnesses in
• f trial transcript to pending witnesses in

al-Qaeda conspirator Zacarias Moussaoui.

• Court said violation of ethics rule and
• Court said violation of ethics rule and

explicit court order.

Transcript of Evidentiary Hearing Before the Honorable – Transcript of Evidentiary Hearing Before the Honorable Leonie M. Brinkema, U.S. District Court Judge, United States v. Zacarias Moussaoui, No. 01-455 (E.D. Va. Mar. 14, 2006), at *217-18.

52

14, 2006), at 217 18.

Trial of Senator Ted Stevens Trial of Senator Ted Stevens

• Judge kicked attorney Bob Bundy out of

g y y courtroom for nodding his head at his client during criminal trial of Senator Ted g Stevens (for improperly accepting $250,000 in gifts and home renovations). g )

– http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120244 7348097&slreturn=1&hbxlogin=1

53

Ibarra - Coaching the Expert

• Ibarra v. Baker, 338 Fed.Appx. 457 (5th Cir.

Ibarra Coaching the Expert

Ibarra v. Baker, 338 Fed.Appx. 457 (5th Cir. 2009).

• Court considered how far is too far when it
• Court considered how far is too far when it

comes to witness coaching

District court ordered sanctions and found attorneys – District court ordered sanctions and found attorneys planted two new terms of art into the litigation via deposition testimony – “retaliation” and “high crime area.” – On appeal, court found the evidence was “a bit t ” b t h ld l t d i i

54

scant,” but upheld lower court decision.

Ibarra - Coaching the Expert Ibarra Coaching the Expert

• Ibarra v Baker

Ibarra v. Baker

– Note one issue in case: the way the court found out about the conduct is because the found out about the conduct is because the attorneys didn’t do the prep themselves – they had expert witnesses speak with other officers – Leads to (perhaps wrong) lesson – just don’t get caught/ privilege will protect most improper coaching?

55

In-House Considerations In-House Considerations

56

In House Considerations In House Considerations

• As In House Counsel viewing the big picture, always think about

level of employee you are preparing 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)

p , ( )

– 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 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 ti d i d th t th ti [ ] bt i l l d i ”

57

questioned in order that the corporation [can] obtain legal advice.”

In-House Considerations In House Considerations

• As In-House Counsel have to consider

As In House Counsel, have to consider the need to be involved in Witness Preparation Preparation.

– Will your presence help or hurt the process?

• Be strategic with your outside counsel
• Be strategic with your outside counsel

– Will it be helpful for you to see witness demeanor to better assess the case? demeanor to better assess the case?

58

In-House Considerations In House Considerations

• If involved in preparation, think about the

If involved in preparation, think about the person involved:

– High-level managers are sometimes the most g g difficult to prepare

• Won’t take the time to prepare

Thi k th k thi ( / h ld b bl

• Think they know everything (or can/ should be able

to answer any question)

• Think they can “outsmart” the other side

y

• May need General Counsel or other high-level

manager present in deposition prep to ensure they understand obligations

59

understand obligations

In-House Considerations In House Considerations

• As In-House Counsel, have to consider

As In House Counsel, have to consider the need to be at Deposition.

– Could your presence help the witness be at y p p ease and feel supported? – Is it a high-level witness who you might need t “ t l”? to “control”? – Is it best for you to see the witness up close and personal? and personal? – What is your “interference” threshold? (can you sit still?)

60

y )

QUESTIONS? QUESTIONS?

61

Ethical Challenges in Preparing Ethical Challenges in Preparing Witnesses and Working with Experts:

Best Practices to Avoid Unethical Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses

Teresa Rider Bult Constangy, Brooks & Smith, LLP Lucia E . Coyoca Mitchell, Silberberg & Knupp, LLP

Nashville, Tennessee Nashville, Tennessee www.constangy.com tbult@constangy.com Los Angeles, Los Angeles, CA CA www.msk.com lec@msk.com

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