What Can’t You Do to Prep a Witness?
We had an adversary once with a somewhat unique approach to trial witness preparation. When we asked his witnesses what they’d done to prepare to testify, they said that they’d just had dinner with the lawyer the night before and generally spoke about the issues in the case.
I’d love to tell you that this approach works well and that it’s the secret to winning all of your cases and lowering your clients' legal bills. But after we cross examined the witnesses at trial, the judge excluded most of the other side’s defenses and we won 100 cents on the dollar from the jury. So, while expedient, the “just have dinner with the witness” approach may be slightly suboptimal as a preparation strategy.
But what are you allowed to do – and not do – in preparing a witness to testify at trial? And what resources are available if your key witness just does not come across well on the stand?
Witness preparation goes by a variety of colorful names. It’s sometimes called “horse shedding” after the carriage houses that 19th century lawyers would use to prep witnesses near the court. [1] It’s sometimes called “sandpapering,” which makes sense if the lawyer is smoothing over the rough edges in a witness’s story. And sometimes it’s called “woodshedding,” a term borrowed from the performing arts where a performer will practice a piece of music in a remote location until they can perform it flawlessly.
But whatever the name, prepping witnesses to testify is a characteristically American practice. Across the Atlantic, in the United Kingdom, courts take an exceedingly dim view of witness preparation that goes much further than directions to the courthouse. This is particularly acute in criminal proceedings, as the court in R v. Momodou wrote:
Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. …
Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited. [2]
Following this decision, the Bar Counsel put out guidance indicating the witnesses could receive some “familiarization” with the process of testifying, provided that “none of those involved in the provision of the programme should have any personal knowledge of the matters in issue in the trial or hearing in question” and “none of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness's recollection of events.” [3]
Needless to say, the American rules are different, where witness preparation is not merely permitted but is often required. As the North Carolina Supreme Court put it in State v. McCormick:
It is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney's questions and the witness' answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can. Such preparation is the mark of a good trial lawyer, and is to be commended because it promotes a more efficient administration of justice and saves court time. [4]
In a similar fashion, ABA Formal Ethics Opinion 508 states that “providing a witness with effective preparatory guidance is undoubtedly a component of the ‘thoroughness and preparation’ element of Model Rule 1.1.” [5] So it’s quite clear that in America, you must prepare key witnesses when practical. But what does that involve? According to the ABA, the following activities are clearly permitted:
remind the witness that they will be under oath
emphasize the importance of telling the truth
explain that telling the truth can include a truthful answer of “I do not recall”
explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition
suggest proper attire and appropriate demeanor and decorum
provide context for the witness’s testimony
inquire into the witness’s probable testimony and recollection
identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony
review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts
identify lines of questioning and potential cross-examination
suggest choice of words that might be employed to make the witness’s meaning clear
tell the witness not to answer a question until it has been completely asked
emphasize the importance of remaining calm and not arguing with the questioning lawyer
tell the witness to testify only about what they know and remember and not to guess or speculate
familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information [6]
What can’t you do? Some things are unambiguously prohibited. You cannot instruct a witness to lie.[7] If a witness informs you that he or she plans to lie, you cannot brainstorm better lies with them. You cannot tell a witness to violate court orders or not to show up when subpoenaed. You can’t bribe a witness – though to be really safe, you may want to avoid bribing anyone, like, ever.
But the more difficult issues arise from preparation that falls somewhere in between advising a witness to “sit up straight and tell the truth” and promising them “I’ll give you $10,000 in stolen emeralds to lie in court.” There are a few classic grey areas where attorneys may inadvertently go over the line.
The first is what’s sometimes called the “lecture on the law.” An attorney tells a witness what the law requires for the client to prevail in a way that makes clear what kind of story would be useful for them to tell. [8] This is dramatized in a classic scene from 1959’s “Anatomy of a Murder.”
https://www.youtube.com/watch?v=JTnF14D8_-I
In the novel, the author describes the “lecture” more explicitly:
The Lecture is an ancient device that lawyers use to coach their clients so that the client won't quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn't done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical ... Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. "Who, me? I didn't tell him what to say," the lawyer can later comfort himself. "I merely explained the law, see." It is a good practice to scowl and shrug here and add virtuously: "That's my duty, isn't it? [9]
There are obviously versions of this that are just straight-up suborning perjury. But you cannot ignore the law when preparing a witness, and if the witness is a client they are entitled to the benefit of your legal knowledge – you cannot ethically hide the ball from them. And if a case turns on a crucial factual detail, you would be crazy not to flag the important of that detail in preparation. If winning or losing comes down to whether a decision was made before or after an accident occurred, you need to know that your witness isn’t going to idly guess or speculate about it when asked.
A particularly thorny example of this issue arose during asbestos litigation in the 1990s. A Dallas firm representing many asbestos victims needed a way to efficiently prepare all of them for deposition. It drafted a document titled “preparing for your deposition” that walked through the issues of the case in great detail and emphasized precisely where the defense lawyers would attempt to score favorable admissions. While much of the memo was good advice about being careful about answers and avoiding tricks used by opposing counsel, there were portions that caused quite a stir when the memo was inadvertently produced to the other side. For example:
Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another. At some jobs there may have been more of one brand. At other jobs there may have been more of another brand, so throughout your career you were probably exposed equally to ALL the brands. You NEVER want to give specific quantities or percentages of any product names. The reason for this is that the other manufacturers can say you were exposed more to another brand than to theirs, and so they are NOT as responsible for your illness! Be CONFIDENT that you saw just as much of one brand as all the others. All the manufacturers sued in your case should share the blame equally! [10]
This definitely appears to suggest the testimony that the witness should say and even instructs them to be “confident” about it, whether they are or not.
Another gray area involves “refreshing” a witness’s recollection. It is definitely the case that a witness may remember details that he or she has forgotten after seeing contemporaneous documents or hearing details that the lawyer obtained from another witness. But the line between refreshing a witness’s recollection and reconstructing it can be fuzzy. As the New York Court of Appeals wrote in In re Eldridge,
While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know. [11]
This can be particularly fraught when it comes to witnesses that are just plain wrong. Memories fade and occasionally you’ll ask a witness a question in preparation that they answer in a way that’s unambiguously, provably, incorrect. In a lot of situations, the false answer may involve details that have little to do with the substance of the case, like when precisely a meeting occurred or who was present. Generally, this is the result of normal errors in recollection – the witness conflates or muddles two different events in their head.
As an attorney, you could ignore the error, let the witness testify, and watch them be torn to pieces in cross examination for an honest mistake. Or you could point out that what they claim to remember is just wrong and show them the evidence that proves it. You could credibly say that you weren’t suggesting that the witness change their story – merely pointing out that they need to be careful not to inadvertently say something incorrect. But it’s easy to see how too much of this – highlighting to a witness what evidence exists and what stories could or could not be disproven – could easily lead to something that looks an awful lot like “brainstorming” lies with a perjurer.
What about witnesses that just don’t come across well? They require more prep than normal and potentially more than most lawyers can provide. If you’re in that situation, and the case warrants it, it’s important to be clear-eyed about how much you can accomplish with practice sessions and consider whether more specialized help is needed. Nowadays, many jury consultants will provide witness preparation services – essentially a specialized form of media training – to improve the poise, delivery, and general credibility of witnesses. The goal isn’t to change a nervous or aloof person into a talk show host, but rather to ensure that the witness presents as the best, most credible version of themselves.
It's a lot more work than a simple dinner, and the ethical issues are real. But effective witness prep absolutely necessary if your clients are going to receive the trial outcomes that, under the law, they deserve.
[1] Steven D. Easton, Why Teach Trial Practice … When There Are No Trials?, 50 U.S.F. L. Rev. 1, n19 (2016).
[2] [2005] EWCA Crim. 177.
[3] Available at: https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Witness-preparation-guidance-2019.pdf
[4] 298 N.C. 788, 791 (1979).
[5] Available at: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-508.pdf
[6] Id.
[7] ABA Model Rules of Professional Conduct § 3.4(b).
[8] Liisa Renee Salmi, Don’t Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135, 154-55 (1999).
[9] Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 25-26 (1995)
[10] Available at: https://www.slideshare.net/slideshow/baron-budd-asbestos-litigation-preparing-for-your-deposition-client-guide/46157594
[11] 82 N.Y. 161, 171 (1880).
