Preparing a client or other witness to testify in advance of a deposition, trial, or adjudicative proceeding is such a familiar component of a lawyer’s trial-advocacy repertoire that many would condemn a lawyer’s failure to prepare a client, and, indeed, the failure to do so competently and diligently can constitute an ethics violation.
At the same time, lawyers sometimes clearly step over the line into what has been firmly established as unethical interference with the integrity of the justice system and/or obstruction of another party’s access to evidence.
The distinction between legitimate witness preparation and guidance versus unethical efforts to influence witness testimony, (sometimes referred to as coaching, horseshedding, woodshedding, or sandpapering), can be ambiguous – owing in large part to the concurrent ethical duties to diligently and competently represent the client and to refrain from improperly influencing witnesses. The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously coach witnesses in new and ethically problematic ways.
Examples of Appropriate Witness Preparation
It is accepted that lawyers can engage in the following activities:
- 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.
Examples of Prohibited Conduct
A lawyer violates ethical obligations by counseling a witness to give false testimony, assisting a witness in offering false testimony, advising a client or witness to disobey a court order regulating discovery or trial process, offering an unlawful inducement to a witness, or procuring a witness’s absence from a proceeding. Prominent among the Rules in this area is 3.4(b), which prohibits a lawyer from advising or assisting a witness — whether a client or not — to give false testimony. Instigating a witness to lie can occur in ways beyond an outright instruction to fabricate testimony. For example, it is unethical to:
- tell a witness to “downplay” the number of times a witness and a lawyer met to prepare for trial;
- encourage a client to misrepresent a location of a slip and fall accident;
- programming a witness’s testimony;
- knowingly violating a sequestration order;
- encouraging a witness to present fabricated testimony;
- offering to compensate a lay witness for the substance of their testimony or to condition such payment on the content of the witness’s testimony – even for truthful testimony;
- donating money to a witness’s favorite charity;
- offering a witness money or other incentives not to testify
While the methods of advance witness preparation are variable and there is a broad range of acceptable methods, the equation changes when a lawyer’s efforts to refine witness testimony happen during a trial or deposition. Overtly attempting to manipulate testimony-in-progress would in most situations constitute at least conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Violation of a court rule or order restricting such coaching behaviors would be knowing disobedience of the rules of a tribunal in violation of Rule 3.4(c). Winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony are classic examples of efforts to improperly influence a witness’s in-progress testimony. Other more subtle types of signaling also implicate ethical obligations and at times result in court-ordered sanctions. A familiar type of covert coaching is the so-called “speaking objection”. These are statements that go beyond just stating the objection or the basis for the objection and are intended – or at least suspected of being intended – to coach the witness and impede the deposing attorney’s discovery. The rules in many state and federal jurisdictions prohibit objections that have the effect of coaching a witness, and may also prohibit lawyers from instructing a witness not to answer a question unless specifically authorized to do so.
Relatedly, when a witness’s testimony is underway, lawyers sometimes attempt to exercise midcourse testimonial influence and undertake damage control during a break or recess and may even seek or insist upon such breaks while a question is pending for the apparent purpose of coaching the witness in a private conference. Although there is no express ethical prohibition on communications between witness and counsel during a break in testimony, adjudicative officers have, at times, exercised control over these circumstances, including entering specific orders and imposing deposition guidelines and/or sanctions.
ABA Ethics Opinion No. 508 (Aug. 5, 2023).