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Ethics of Witness Preparation Under ABA Formal Opinion 508: Avoiding Coaching

This webinar offers 90 minutes of Ethics credit.

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Thursday, May 30, 2024

Recorded event now available

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This CLE webinar will discuss the ethics of witness preparation in light of ABA Formal Opinion 508, "The Ethics of Witness Preparation." The panel will examine this essential skill, recurring witness preparation strategies, and practices, and will then debate and critique when some perfectly ethical practices may cross the line and become unethical.

Description

Witness preparation has always been an expected and even essential part of trial preparation. Indeed, failure to prepare witnesses may even be malpractice or an ethical violation. Any lawyer who engages in preparation of witnesses, whether for administrative or other types of hearings or court or jury trials, must know the ethical rules and restrictions on preparing witnesses and clients.

But as FO 508 discusses, there is a big difference between ethical preparation and actions that interfere with the integrity of the justice system and obstruct another party's access to evidence (Op. 508 at 4). A lawyer's "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.” In the Matter of Eldridge, 82 N.Y. 161, 171 (N.Y. 1880).

FO 508 is particularly concerned with commonly used remote technologies that can be used to "coach" witnesses in new and ethically problematic ways, especially during testimony or what it calls "midcourse testimonial influence." As the panel will discuss, this type of coaching often produces much of the conduct that lawyers complain make depositions so difficult.

Listen as this panel of experienced litigators and ethics expert use vignettes to highlight what FO 508 has to say about the essential skills and ethics of witness preparation.

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Outline

  1. Limit on coaching
    1. "Don't volunteer information"
    2. "The less you remember, the better"
    3. "If in your mind's eye you can see and hear an event, say you don’t recall"
  2. Rehearse questions and answers
    1. Question-and-answer script
    2. Practice on video and have a consultant coach the witness
    3. Have many lawyers in the room to intimidate the witness
  3. Tell a witness to "downplay" the number of times a witness and a lawyer met to prepare
  4. Discussing the applicability of law to the events at issue
    1. Before you tell me what happened, let me explain the law to you first
    2. Before you tell me what happened, let me review the factual context into which your observations will fit
    3. Before you tell me what happened, let me tell you other testimony or evidence that will be presented and ask you to reconsider your recollection or recounting of events in that light
  5. Suggest a choice of words

Benefits

The panel will review these and other key issues:

  • How does the opinion change the ethics rules?
  • What are the ethical limits of working with favorable witnesses and clients in preparing them to give testimony?
  • What is the difference between witness preparation and coaching a witness, and how do you draw the lines between them?

Faculty

Cochran, Anthony
Anthony L. Cochran
Partner
Smith Gambrell & Russell

Mr. Cochran represents individuals and businesses in a wide variety of matters. He has tried jury trials, bench trials,...  |  Read More

Kornblum, Guy
Guy O. Kornblum
Principal
Guy O. Kornblum

Mr. Kornblum has specialized as a trial and appellate lawyer for 40 years. He has handled over 3,500...  |  Read More

Lefkowitz, David
David Lefkowitz
Principal
The Lefkowitz Firm LLC

Mr. Lefkowitz represents individuals and companies (corporations, LLCs, PCs, etc.) in their claims for legal...  |  Read More

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