Witness Preparation Strategies Pursuing Aggressive Advocacy While - - PowerPoint PPT Presentation

Witness Preparation Strategies

Pursuing Aggressive Advocacy While Avoiding Ethical Violations for Woodshedding

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THURSDAY, OCTOBER 4, 2012

Presenting a live 90-minute webinar with interactive Q&A

Teresa Rider Bult, Partner, Constangy Brooks & Smith, Nashville, Tenn. Coby Cohen, Assistant General Counsel - Litigation & Employment, Knowledge Universe, Portland, Ore.

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5

Witness Preparation Strategies:

Teresa Rider Bult, Constangy, Brooks & Smith, LLP

tbult@constangy.com

Coby Cohen, Knowledge Universe - U.S.

ccohen@klcorp.com

Pursuing Aggressive Advocacy and Avoiding Ethical Violations

6

Theory of Witness Preparation

7

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.

8

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 (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

Opinion 79, p. 140.

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

9

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.

10

The Basics of Witness Preparation

11

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

12

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

13

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

14

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

15

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)

16

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.”

17

Client v. Non-Client

18

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.”

19

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.”

20

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

21

Client v. Non-Client

• What about other people in the room during

preparation?

– If representing company, and another managerial employee, probably okay (privilege still applies) – If non-party, the conversation is no longer privileged – If spouse, spousal privilege may apply, but don’t assume - do research first and try to avoid (and it is likely best to avoid this scenario, particularly since you don’t control the spousal privilege) – If joint defendants, probably okay, but not fool-proof

22

The 30(b)(6) Deposition Prep

23

30(b)(6) Depo Prep

• Preparation of your 30(b)(6) witness is very important.
• They speak for the corporation and must be prepared to

testify on behalf of corporation.

– Can designate multiple witnesses – Can ask for more specifics than are on Notice – Can file for protective order ahead of time – Must fully prepare on all areas outlined in the Notice.

• Should not typically say “I don’t know”

– CAN say, “Despite diligent preparation for this deposition, I did not anticipate that question being posed here today based on the areas of inquiry outlined in the Notice” or – “The company does not have knowledge about that fact” (e.g., if they are asking questions another party or parent company would know)

24

30(b)(6) Depo Prep

• Starlight International, Inc. v. Herlihy,

186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D. 587 (D. Kan. 1999).***

–Held: producing an unprepared witness for a Rule 30(b)(6) deposition "is tantamount to a failure to appear at a deposition . . .," and therefore constitutes sanctionable conduct under

• Fed. R. Civ. P. 37(d)(1)(A).

25

30(b)(6) Depo Prep –

TIPS

• Make sure the witness understands their
• bligation & can say they diligently made

inquiries on all areas outlined in Notice

• Make sure the witness talks to others in
• rganization and reviews all relevant documents

to become educated on areas outside their personal knowledge

• Teach them to say the magic words, “I did not

anticipate that question based on the areas of inquiry in the Notice” or “the company does not have knowledge”

26

In-House Considerations

27

In-House Considerations

• High-level managers are sometimes the

most difficult to prepare

– They feel the need to know everything or feel they already know everything – Won’t take the time to prepare – Think they can “outsmart” the other side – May need General Counsel or other high-level manager present in deposition preparation to ensure they understand obligations

28

In-House Considerations

• Conversely, hourly employees sometimes

don’t understand whole process or pressure they’ll be under in deposition

– Will sometimes tell you one thing in preparation and cave at actual deposition

• Know your workforce and your witness

– Individual needs to be prepared so they know what to expect

• Not to change their testimony, but so you can

prepare and understand case

29

In-House Considerations

• As In-House Counsel, Consider the Need

to be Involved in Witness Preparation

– Will your presence help or hurt the process?

• Be strategic with your outside counsel
• Your presence might put the deponent at ease or
• nly make the deponent more afraid to talk

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

30

Deposition vs. Trial

31

Deposition v. Trial

• Principles for Witness Preparation for Trial are

Similar to Deposition.

• EXCEPT, Key Issues to Consider at Trial:

– Witness Likeability

• Be prepared for credibility questions
• Don’t act smug
• Don’t be defensive

– Own behavior that you should

• Jury is watching at all times (even during breaks/ going to

bathroom/ in elevator)

– Does Witness Seem Too Prepared? – Ensure witness knows not to look at attorney for “help” during trial

32

Deposition v. Trial

• Additional Key Issues to Consider at Trial:

– Witness needs to be prepared for different Rules:

• What to do when objections are made
• How to get in a business record into evidence
• Magic words for refreshing recollection (“I just can’t

remember;” “Would there be anything which would help you remember?”)

– Witness Needs to be Prepared for DIRECT Examination

• Picking up attorney clues for what answer they are seeking
• Understanding the flow of questioning to be presented

33

Deposition v. Trial

• Additional Key Issues to Consider at Trial:

– Need to be prepared for impeachment from prior deposition testimony – Need to be prepared to explain bad prior deposition testimony – May be sequestered

34

Ethical Questions: Witness “Coaching” v. Preparation

35

Applicable Ethical Rules

36

Lawyer’s Duty in Preparing Witnesses

• ABA Model Rule 1.3 -- Diligence

– “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 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. – “A lawyer is not bound, however, to press for every advantage that might be realized for a client.”

37

Lawyer’s Duty in Preparing Witnesses

• TRUTH – 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

• ffer evidence that the lawyer knows to be false.”

– Disciplinary Rule 7-102(A):

• A lawyer, “shall not . . . [p]articipate in creation or preservation
• 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.”

38

Ethical Questions: Witness “Coaching” v. Preparation Case Examples

39

Ibarra v. Baker

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

2009)

• Court Considered How Far is Too Far When it

Comes to Witness Coaching

– 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 scant,” but upheld the lower court decision

40

Ibarra v. Baker

• Ibarra v. Baker (cont.)

– Note one issue in case: the way the court found out about the conduct is because the attorneys didn’t do the prep themselves – they had expert witnesses speak with other officers – While privilege may protect this same activity if a lawyer conducted the preparation, the lesson regarding the dividing line between improper coaching and preparation is key

41

Moussaoui Trial

• March 2006, attorney Carla Martin was

sanctioned in Virginia for providing copies

• f trial transcript to pending witnesses in

al-Qaeda conspirator Zacarias Moussaui

• Court said it was a violation of an ethics

rule and an explicit court order

– 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.

42

Trial of Senator Ted Stevens

• Judge kicked attorney Bob Bundy out of

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

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

43

Ethical Questions: Witness “Coaching” v. Preparation QUESTIONS/ ANSWERS

44

Can You Show a Witness a Transcript

• f Someone Else’s Testimony?
• 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

• Trial is a different story – they may invoke “the rule”

(sequestration/ exclusion of witnesses)

– Rule 615 of Federal Rules of Evidence says “at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order

• f its own motion.”

45

Can You Tell the Witness the Theory of the Case/ Company’s Legitimate, Nondiscriminatory Reason (for employment cases)?

• Yes – Important for Witness to

Understand the Big Picture

• Caution:

– Witness Should Articulate in Own Words

• Same response for all witnesses make it look less

credible

• Learned from Ibarra case that “term planting” can

be sanctionable

46

Documentation – 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

– Technically, witness has to produce what he/she used to prepare for deposition – Some jurisdictions take approach that if it isn’t substantive information, it is attorney-client privileged/ attorney work product – Document used to refresh recollection is fair game – Videos preparing them are good

47

Can you tell them a specific fact they didn’t know before deposition?

• Yes, but again, be careful you aren’t

planting memories

• Need to make sure you’re just generally

informing them of background facts, not suggesting that they need to testify to the fact

• Be wary of witness who says, “I’ll say

whatever you want me to say”

48

How do you handle prepping multiple witnesses at one time?

• Again, think about status of attorney-client

privilege

• Caution: one witness may not be

comfortable sharing entire story with other

• ne around (especially if other witness is

supervisor)

• Avoid if you can

49

Preparation – How Much do you Want to Invest?

• If important witness, think about

videotaping a mock deposition or direct/ cross-examination, so the witness can see how they will testify

50

Coaching Witnesses DURING Deposition or Trial

51

Coaching Witnesses DURING Deposition or Trial

• Can you coach a witness during breaks at

a deposition or trial?

– Trial – it is clear you CANNOT talk to witness who is still “on the stand” during a break. – Depositions – less clear

• Most attorneys take position break conversations

are 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
• ut (turnabout is fair play?)

52

ABA Civil Discovery Standards

Rule 18 – Conferring with the Witness

• An attorney should not initiate a private

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

53

Coaching Witnesses DURING Deposition or Trial

• What if another attorney has clearly

coached a witness during a break?

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

• Best practice:

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

54

What objections can you make DURING deposition?

• Check out your jurisdiction – some jurisdictions,

you can only object as to form.

• ABA Civil Discovery Standards Rule 18 –

– In objecting to or seeking to clarify a pending question, an 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 objection which can be cured at deposition)

– Educate witness about listening to your objections

• Preservation depositions require trial objections

55

Can you tell Witness to “pay attention” or “don’t speculate” or ask for rephrasing of question?

• Jurisdictional question – check your

jurisdiction

• Generally, polite dialogue is okay unless it

is clear you are suggesting answer to the witness

56

Witness Preparation Strategies:

Teresa Rider Bult, Constangy, Brooks & Smith, LLP

tbult@constangy.com

Coby Cohen, Knowledge Universe - U.S.

ccohen@klcorp.com

Pursuing Aggressive Advocacy and Avoiding Ethical Violations