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Wi  P i  S iWitness Preparation StrategiesPursuing Aggressive Advocacy and Avoiding Ethical Violations

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, FEBRUARY 22, 2011

Today’s faculty features:

Teresa Rider Bult, Partner, Constangy Brooks & Smith, Nashville, Tenn.

Elizabeth Large, Executive Vice President and General Counsel, Knowledge Learning Corporation, Portland OrePortland, Ore.

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Witness Preparation Strategies:

Pursuing Aggressive Advocacy andPursuing Aggressive Advocacy and Avoiding Ethical Violations

Teresa Rider Bult, Constangy, Brooks & Smith, LLPtbult@constangy comtbult@constangy.com

Elizabeth Large, Knowledge Universe - U.S.ELarge@klcorp.com

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g @ p

Theory of Witness Preparation

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Theory of Witness PreparationTheory of Witness Preparation

• Some take the position that any witness “preparation” di t t th h f t th d i th idistorts 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 worksIf 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.

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Theory of Witness PreparationTheory 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 herhaving 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 truthfulAs 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)S ti l t th it th t i ht id th t ti• 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 ” DCConducting 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.

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2004.

Theory of Witness PreparationTheory of Witness Preparation

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

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The Basics of Witness Preparation

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Keep the Main Thing the Main Thing: Primary Purpose of Witness PreparationPrimary 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

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Your (the Attorney’s) Job:

• Know all the facts and legal issues in the caseA ti i t h t ti th th id ill k• Anticipate what questions the other side will ask

• Educate yourself on opposing counsel and hi /h t lhis/her style

• Read through all prior deposition transcripts –has this witness’s name been mentioned?has this witness s name been mentioned?

• Touch every document in the case (if possible) to make sure you can show witness all relevantto make sure you can show witness all relevant documents/ walk through them.

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Key Points to Instruct Your Wi i D i i PWitness in Deposition Prep:

• TRUTH: Obligation to tell the truth, and nothing g gdiscussed in preparation is intended to instruct them otherwise.

• Tell the Witness NOT to Volunteer InformationTell 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• Tell the Witness to Ensure he/she Understands the Question.”– Watch for the tricky question

Li t t th ti– Listen to the question– Ask for Rephrasing– Pause Before you Answer

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Key Points to Instruct Your Wi i D i i PWitness in Deposition Prep:

• Instruct them 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.”– Understand attorneys are very good at piecing together facts to y y g p g g

undermine your faulty “memory.”• Tell them NOT to Speculate

– Distinguish Between What You KNOW and what you ASSUMEDistinguish Between What You KNOW and what you ASSUME– Don’t Play the Dates and Documents Game

• Make sure they know this is Not an Endurance TestAsk to Take a Break (as an attorney make sure they take a– Ask to Take a Break (as an attorney, make sure they take a break)

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Key Points to Instruct Your Wi i D i i PWitness in Deposition Prep:

• Make sure they understand how to handle objectionsM k h k li bj i / b f h• Make sure they know to listen to your objections/ pause before they answer.

• What do they do when documents are presented to them?• What if the attorney asks personal questions like prior convictionsWhat if the attorney asks personal questions, like prior convictions,

divorces, roommates?• Can they correct mistakes? If so, how?

– Attorney questioning at end– Errata sheet– During deposition – can say, “I think I misspoke.”

• Talk through logistics:– How to dressHow 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).• How to address the camera when answering not fidget etc

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• How to address the camera when answering, not fidget, etc.

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 thesing. It doesn t work, and it annoys the hell out of the pig.”

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Client v Non-ClientClient v. Non-Client

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Client v Non-ClientClient v. Non Client

• Clients: attorney-client privilege is probably y p g p ygoing to apply

• What you tell your client is not generally discoverable

N li t ill th b thi• Nonclients – can spill the beans on everythingabout your prep session– Make sure they are prepared for question, “Are youMake sure they are prepared for question, Are you

represented by counsel today?”;– What did you talk about with the attorney?; and

Did th tt i t t t thi d– Did the attorney instruct you to say anything or do anything?

• Answer: Yes, to tell the truth.

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Client v Non-ClientClient v. Non Client

• If you are representing a company, think about level of employee you are preparingyou 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 torelevant 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 ”

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

Client v Non-ClientClient v. Non Client

• What about former employees?What about former employees?– Probably no privilege unless set up

representation with them as well (and jointrepresentation with them as well (and joint representation can be tricky)

– Depends on JurisdictionDepends on Jurisdiction– Most states say that privilege does not apply

to former employees – question may be p y q ywhether the witness has ability to bind the corporation.

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Client v Non-ClientClient v. Non Client

• What about other people in the room duringWhat 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 l i il l b t d ’t– If spouse, spousal privilege may apply, but don’t assume - do research first and try to avoid

– If joint defendants, probably okay, but not fool-proof.If joint defendants, probably okay, but not fool proof.

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The 30(b)(6) Deposition PrepThe 30(b)(6) Deposition Prep

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30(b)(6) Depo Prep30(b)(6) Depo Prep

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

testify on behalf of corporation.– Can designate multiple witnessesCan designate multiple witnesses– Can ask for more specifics than are on Notice– Can file for protective order ahead of time.

• Should not typically say “I don’t know ”• 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. OR“The company does not have knowledge about that fact” (e g if– The company does not have knowledge about that fact (e.g., if they are asking questions another party or parent company would know).

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30(b)(6) Depo Prep –TIPS

• Make sure the witness understands his/herMake sure the witness understands his/her obligation & can say diligently made inquiries

• Make sure the witness talks to others in organization and reviews all relevant documents to become educated on areas outside personal knowledge

• Teach them to say the magic words, “I was not d f h i ” “ hprepared for that question,” or “the company

does not have knowledge.”

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In-House ConsiderationsIn-House Considerations

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In-House ConsiderationsIn House Considerations

• High-level managers are sometimes theHigh level managers are sometimes the most difficult to prepare

They feel the need to know everything– They feel the need to know everything– Won’t take the time to prepare

Think they can “outsmart” the other side– Think they can outsmart the other side– May need General Counsel or other high-level

manager present in deposition prep to ensuremanager present in deposition prep to ensure they understand obligations

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In-House ConsiderationsIn House Considerations

• Conversely, hourly employees sometimesConversely, hourly employees sometimes don’t understand whole process or pressure they’ll be under in deposition.p y p– 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 expectwhat to expect.

• Not to change their testimony, but so you can prepare and understand case.

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In-House ConsiderationsIn House Considerations

• As In-House Counsel also have toAs In House Counsel, also have to consider the need to be involved in Witness PreparationWitness 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?

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Deposition vs. Trial

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Deposition v TrialDeposition v. Trial

• Principles for Witness Preparation for Trial are p psimilar to Deposition.

• EXCEPT: Key things to consider at trial:Witness Likeability– Witness Likeability

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

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Deposition v TrialDeposition v. Trial

• Additional Key things to consider at trial:Additional Key things 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 examinationexamination

• Picking up attorney clues for what answer they are seeking.

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Deposition v TrialDeposition v. Trial

• Additional Key things to consider at trial:Additional Key things to consider at trial:– Need to be prepared for impeachment from

prior deposition testimonyprior deposition testimony– Need to be prepared to explain bad prior

deposition testimonydeposition testimony– May be sequestered

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Ethical Questions in Witness “C hi ”“Coaching”

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Applicable Ethical RulesApplicable Ethical Rules

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Lawyer’s Duty in Preparing WiWitnesses

• ABA Model Rule 1.3 -- Diligenceg– “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 opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to i di t li t' dvindicate 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 behalfbehalf.

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

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Lawyer’s Duty in Preparing WitnessesWitnesses

• TRUTH – the #1 rule of any depositionABA M d l R l 3 3( ) C d T d Th T ib l– 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 offer evidence that the lawyer knows to be false.”

– Disciplinary Rule 7-102(A):p y ( )• A lawyer, “shall not . . . Participate in creation or preservation of

evidence when he knows or it is obvious that the evidence is false” or “counsel or assist his client in conduct that the lawyer yknows to be illegal or fraudulent.”

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Ethical Questions in WitnessEthical Questions in Witness “Coaching”

Case Examplesp

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Ibarra v BakerIbarra v. Baker

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

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scant,” but upheld lower court decision.

Ibarra v BakerIbarra v. Baker

• Ibarra v BakerIbarra v. Baker– Note one issue in case: the way the court

found out about the conduct is because thefound out about the conduct is because the attorneys didn’t do the prep themselves – they had expert witnesses speak with other officershad expert witnesses speak with other officers

– Leads to (perhaps wrong) lesson – just don’t get caught/ privilege will protect mostget caught/ privilege will protect most improper coaching?

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Moussaoui TrialMoussaoui Trial

• March 2006 attorney Carla MartinMarch 2006, attorney Carla Martin sanctioned in Virginia for providing copies of trial transcript to pending witnesses inof trial transcript to pending witnesses in al-Qaeda conspirator Zacarias Moussaui.

• 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.

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14, 2006), at 217 18.

Trial of Senator Ted StevensTrial 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 gStevens (for improperly accepting $250,000 in gifts and home renovations).g )

– http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202447348097&slreturn=1&hbxlogin=1

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Ethical Questions in WitnessEthical Questions in Witness “Coaching”

QUESTIONS/ ANSWERS

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Can You Show a Witness a Transcript f S ?of 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 ti f i d iti t th f t ti lquestions from prior deposition to prepare them for potential

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

( t ti / l i f it )(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

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hear the testimony of other witnesses, and it may make the order of its own motion.”

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

(for employment cases)?

• 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 pcredible.

• Learned from Ibarra case that “term planting” can be sanctionable

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be sanctionable.

Documentation – can you provideDocumentation can you providewitnesses with a list of documents to review?

• Yes, but question is whether the witness has to t tif b t it/ d th li ttestify about it/ produce the list.– Technically, witness has to produce what he/she

used to prepare for depositionused to prepare for deposition.– 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.Vid i th d

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– Videos preparing them are good.

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

• Yes, but again, be careful you aren’t l ti iplanting memories.

• Need to make sure you’re just generally i f i th f b k d f t tinforming them of background facts, not suggesting that they need to testify to the factfact.

• Watch for witness who says, “I’ll say whatever you want me to say ”

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whatever you want me to say.

How do you handle prepping multipleHow do you handle prepping multiple witnesses at one time?

• Again, think about status of attorney-client privilege.

• Caution: one witness may not be ycomfortable sharing entire story with other one around (especially if other witness is ( p ysupervisor).

• Avoid if you can46

Avoid if you can.

Preparation – How MuchPreparation How Muchdo you Want to Invest?

• If important witness, think about videotaping a mock deposition or direct/ cross-examination, so the witness can see how testimony comes across.

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Coaching Witnesses DURING D iti T i lDeposition or Trial

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Coaching Witnesses DURING D i i T i lDeposition or Trial

• Can you coach a witness during breaks at a deposition or trial?– Trial – it is clear you CANNOT talk to witness

h i till “ th t d” d i b kwho is still “on the stand” during a break.– Depositions – less clear

• Most attorneys take position break conversations• Most attorneys take position break conversations are attorney-client privileged

• One case: depositions are like trial, and once the d iti b i th h ld b f thdeposition begins, there should be no further questions which could taint the testimony

• Reality: attorneys are loathe to call other attorneys

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y y yout (turnabout is fair play?).

ABA Civil Discovery StandardsRule 18 – Conferring with the WitnessRule 18 – Conferring with the Witness

• An attorney should not initiate a privateAn attorney should not initiate a private conference with the deponent during the deposition except to determine whether adeposition except to determine whether a privilege should be asserted or to enforce a court-ordered limitation on the scope of cou t o de ed tat o o t e scope odiscovery.

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Coaching Witnesses DURING D i i T i lDeposition or Trial

• What if another attorney has clearly y ycoached 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

explanationexplanation• 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 from51

them testifying to when they returned from break

What objections can you make DURINGWhat objections can you make DURING deposition?

• Check out your jurisdiction – some jurisdictions, you can only object as to formyou can only object as to form.

• ABA Civil Discovery Standards Rule 18 –– In objecting to or seeking to clarify a pending

ti tt f d t h ld tquestion, an attorney for a deponent should not include any comment that coaches the witness or suggests an answer.

T i ll l bj t t l k f f d ti• Typically can also object as to lack of foundation (any objection which can be cured at deposition).

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– Educate witness about listening to you objections.

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

rephrasing of question?p g q

• Jurisdictional question – check your jurisdiction.

• Generally, polite dialogue is okay unless it y, p g yis clear you are suggesting answer to the witness.

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QUESTIONS?

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Witness Preparation Strategies:

Pursuing Aggressive Advocacy andPursuing Aggressive Advocacy and Avoiding Ethical Violations

Teresa Rider Bult, Constangy, Brooks & Smith, LLPtbult@constangy.com

Elizabeth Large, Knowledge Universe - U.S.ELarge@klcorp com

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ELarge@klcorp.com