The Dividing Line Between Preparing and Coaching a Witness for a Deposition
Whether you’re planning for a deposition or a trial, making sure your witness or client is properly prepared to answer questions is essential. You want your witness to project confidence and an air of trustworthiness for the jury. You also want his answers to help your case—or at least not help the opposing counsel’s case. In order to find a balance between all of these, you must put the time and care into preparing your witness.
Attorneys are expected to instruct their witnesses on how to behave during questioning, as well as how to properly and confidently give answers. Unfortunately, as with most things, the way an attorney instructs his witness can have consequences.
Prepare vs. Coach: The Two Sides of Witness Instruction
Although many layman would disagree, attorneys are ethical creatures. As professionals who uphold the law, they have strict codes of conduct when it comes to witness tampering and fraudulent behavior.
Unfortunately, the boundary line when it comes to preparing a witness can be easily missed if you’re not careful. As a result, an otherwise ethical lawyer may wind up crossing into the unethical land of coaching misconduct. This is why it is important to not only know the difference between preparing and coaching a witness, but also know how to avoid crossing the line.
When instructing a witness for questioning, the following tactics should be used to ensure an ethical preparation:
- Educate. Review and explain the legality of the issues at hand as well as the questioning procedure.
- Lay out a plan. Discuss how you’re going to question the witness. If the witness is your client, then you can also discuss how you’re planning on attacking the case and how his testimony will play into it.
- Encourage honesty by reassuring competence. This is your opportunity to make sure that the witness knows that he must stick to honest facts, and it isn’t his responsibility to alter facts to improve your case. It’s your job to make whatever he says work for the case—whether good or bad, as long as it’s honest.
- Build confidence. Reassure the witness that he has nothing to fear as long as he is honest.
- Lessen confusion. Discuss how questioning works and how the opposing counsel may try to trip him up with legal jargon or confusion. Provide tools to lessen that confusion such as telling him to repeat or rephrase the question.
- Rehearse potential questions. Help the witness get comfortable with the process of answering questions in order to avoid nervous stuttering or anxiety.
- Provide support. Give your witness all of the encouragement and support he needs to feel comfortable during questioning.
Some lawyers try to skirt the line of propriety by giving their witnesses an improper “edge.” Not only is this type of behavior completely unethical, it can also seriously damage a case and even cast doubt on the lawyer’s professional morality and competence. Common coaching tactics include…
- Encouraging dishonesty. It’s unethical to instruct the witness to lie about facts or conceal pertinent evidence that may hurt his case.
- Plotting misconduct. It’s unethical to assist or counsel a client to engage in felonious conduct or behavior that you know knows is fraudulent.
- Drafting testimony. It’s unethical to provide a script or specific terms or phrases for the witness to say (or not say) in order to misrepresent facts.
- Baiting. It’s unethical to improperly influence or lead a witness into giving a false testimony. This includes knowingly presenting false evidence and misrepresenting facts to assist a witness’ false testimony.
- Falsely influencing other witnesses. It’s unethical to encourage your witness to provide false information in order to influence other witnesses to change their testimonies.
Remember, the way your witness acts under oath could reflect poorly on you. Make sure he is properly and morally prepared before he testifies to avoid problems and accusations of tampering misconduct.