Effective and ethical witness preparation

You have a good case ... if your witnesses testify as expected, that is. If you are working with reluctant witnesses, you want to encourage transparency, openness, and of course truthfulness. Competent lawyering requires preparing your case, including your witness testimony. But ethically, when it comes to witness preparation, can there be too much of a good thing?

According to a new ABA Ethics opinion (as well as common sense), the answer is yes. ABA Formal Opinion 508 examines the ethics of witness preparation. It acknowledges a lawyer’s role in preparing a witness to testify as both an accepted professional function and “an essential tactical component of a lawyer’s advocacy.” Referencing the client-lawyer relationship and a lawyer’s duties as an advisor, the Opinion recognizes failing to adequately prepare a witness could itself constitute an ethical violation. The problem is when in preparing a witness, a lawyer steps over the line of ethically permissible conduct. Let’s consider some examples.

Competent witness preparation

California rule 1.1 requires lawyers to perform legal services with competence. This necessarily includes addressing all aspects of case preparation, including preparing to call witnesses. Discussing witness testimony, including the context, circumstances, and even content of such testimony is a part of trial preparation. There are accordingly a variety of ways lawyers can ethically approach this task that will not run afoul of ethical rules.

Formal Opinion 508 provides a list of examples of the types of witness preparatory behaviors that constitute permissible preparation, including:

• Reminding a witness they will be under oath

• Emphasize the importance of truth-telling

• Explain the appropriateness of truthfully admitting when a witness does not recall something

• Reminding a witness to avoid guessing or speculation

• Suggest word choice to make a witness’ meaning clear, as long as it does not assist the witness to falsely testify about a material fact

• Discussing case strategy and procedure

• Asking about the witness’s probable testimony, including recollection

• Recognizing other testimony expected to be presented

• Identifying areas of inquiry including potential cross-examination

Lawyers may go further than merely addressing the testimony itself, Opinion 508 also notes they can suggest proper attire, citing a 2023 New York Times article noting that a witness’s attire and demeanor “were so effective that people wondered if someone was stage-managing the style.” Lawyers can also explain appropriate courtroom demeanor and decorum, including the importance of remaining calm and not arguing with the lawyer asking the questions – which as most lawyers have already noticed, also serves to enhance witness perceived credibility and likability.

Truth matters

Lawyers do not need to be reminded that presenting false testimony violates a host of ethical rules, including California rule 3.3, Candor to the Court, as well as various provisions of the California State Bar Act including Business and Professions Code sections 6068(d) and 6106. We are reminded in Opinion 508 that proffering false testimony also violates Model Rule 3.4, Fairness to Opposing Party and Counsel. Highlighting the reality that courtroom ethics governs much more than attorney-client behavior, 3.4, subdivision (c) in California prohibits a lawyer from advising or assisting any witness, regardless of whether they are a client or not, to provide false testimony.

Most lawyers would not explicitly direct a witness to testify falsely. Consequently, Opinion 508 recognizes a variety of ways a lawyer can prompt false testimony without explicitly directing it. Examples include instructing a witness to “downplay” the frequency with which the lawyer and witness met to prepare for trial or encouraging a client to misrepresent where a slip and fall occurred to mount a viable claim.

Witness interruptions as obstruction of justice

Preparing witnesses to testify can only address prospective issues ahead of time. Given the preparation on both sides of a case, however, problems are bound to arise during testimony. Accordingly, Opinion 508 also addresses mid-stream testimonial interruptions or attempted course-corrections.

It is noted that overt attempts to manipulate live testimony would likely amount to conduct “prejudicial to the administration of justice” in violation of Model Rule 8.4(d) – which California adopted as well. They give examples of influencing a witness’ testimony by winking, whispering, kicking a deponent under the table, or passing notes as classic examples of attempts to improperly influence testimony in-progress. Opinion 508 also recognizes improper, blatant attempts to influence witness testimony through a “speaking” or “suggestive” objection, making statements that go beyond the basis for the objection with the intent of coaching the witness about what to say.

Yet we have moved beyond testimony that occurs in a live setting. Regarding how and when witness “coaching” may occur in modern times, Opinion 508 recognizes the answer includes remote communication.

Remote control of witness testimony

Opinion 508 discusses the increasingly relevant and common dilemma of putting on a witness remotely including how much and what type of contact the lawyer can have with the witness during the testimony. This issue has become increasingly important given the prevalence of common remote technologies, some of which have been used to manipulate or “coach” witnesses in a fashion that is largely undetectable.

Opinion 508 suggests that one potential method of addressing and hopefully avoiding unethical witness coaching in remote settings is through proactive planning: structuring remote proceedings in advance of testimony through a court order, an agreement, or through collectively adopting behavioral norms designed to increase transparency and establish guardrails designed to keep lawyers honest and ethical during the process.

Witness testimony can be powerful, persuasive, and professional

Witnesses can make or break your case, and effective witness preparation assists both lawyers and witnesses. When lawyers understand the boundaries of ethical witness preparation, including the use of remote-meeting technology, they can prepare their witnesses in advance in a fashion that is effective, and ethical.