Preparing Your Client for Deposition or Trial Testimony

FDCC Quarterly, Fall 2008 by Hudson, Clark R, Mhairtin, Jackie M Ni

Like it or not, plaintiffs seek sworn testimony from your clients for one reason: They want money. Whether the money comes from your client or another party is generally of little concern to the plaintiff. A sophisticated plaintiff's attorney will focus his or her questioning on questions designed to support a decision for a monetary award. Ideally, the defendant will admit liability. Alternatively, the plaintiff's attorney will secure testimony that is not intended to be an admission of liability but will be interpreted as such.

In today's environment, attorneys are much better prepared to understand the legal significance of a witness's words. Attorneys are also able to coach their clients in a manner to avoid unintended liability. The purpose of this paper is to provide ideas about how to prepare clients to undergo questioning by opposing counsel, but also to make attorneys aware of the ethical considerations for witness preparation.

I.

RULES OF PROFESSIONAL CONDUCT

Although the Rules of Professional Conduct may vary from state to state, there remains a consistent theme - an attorney cannot engage in subornation of perjury or create false evidence. The ABA Model Rules of Professional Conduct address our duties as follows:

* "A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."1

* A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."2

* "A lawyer shall not . . . unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act."3

* "A lawyer shall not . . . falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."4

Other than obvious decisions against attorneys for suborning perjury5 and several law reviews that provide some guidance, there is actually very little published on the do's and don'ts of preparing witnesses to testify.6 Practicing attorneys are therefore left with little more than their years of practice and common sense in preparing a witness to testify. There are obviously divergent views on the lawyer's role in witness preparation. One extreme would be that "[a] lawyer has no affirmative duty to engage in pretrial witness preparation."7 The flipside is the attorney should take every step available to ensure the client is appropriately prepared.8 Pragmatically, the appropriate starting point in preparing your client to testify should be to determine whether your client believes his or her conduct was negligent.

II.

PREPARING THE CLIENT'S MEA CULPA

The attorney representing the client who readily professes his or her responsibility for tortious conduct has what should be viewed as a straightforward responsibility. The client comes to the attorney because he or she has a problem. It is the attorney's responsibility to help the client with the problem, not make the problem worse. In a case of admitted liability, the attorney should stress to the client the need to tell the truth, the whole truth, and nothing but the truth. The tortfeasor who acknowledges his or her errors fares far better than individuals who attempt to cover them up. An admission creates less stress and anxiety for the tortfeasor. His or her credibility remains intact, and the admission will also lessen the likelihood of increasing animosity from a jury of peers when the time comes to affix a value on the offending conduct.

III.

HALF TRUTH EQUALS HALF LIE

The client should be instructed that any response that leaves a misleading impression is inappropriate. A claim of lack of memory or knowledge can technically be considered perjury if the witness indeed can recall the facts.9 Likewise, responding to questions in a way that tells only half the truth can be viewed as perjury or, at the very least, doing so can injure your client's credibility. Consider the following examples:

Question: Are you board certified?

Answer: My certification is with the American College of Obstetrics and Gynecology.

(Truth - I was certified by the American College of Obstetrics and Gynecology; however, I am not currently certified as I failed to recertify.)

OR

Question: Where did you go to medical school?

Answer: USC Medical School.

(Truth - I initially attended medical school at the University of Michigan, but failed academic probation and was dismissed from the program. I then reapplied and got into USC where I completed medical school.)

IV.

CLIENT WHO BELIEVES UNEQUIVOCALLY HE OR SHE WAS NOT NEGLIGENT