The Ethics of Witness Preparation in a Coverage Case -- Prepare Your Witness.. But not TOO much!

Transcription

1 The Ethics of Witness Preparation in a Coverage Case -- Prepare Your Witness.. But not TOO much! PREPARED AND PRESENTED BY: Joseph G. Harraka, Jr. Becker Meisel LLC 354 Eisenhower Parkway Suite 1500 Livingston, New Jersey Chauntis T. Jenkins Porteous Hainkel & Johnson 704 Carondelet Street New Orleans, LA Angela Krahulik Ice Miller LLP One American Square Suite 2900 Indianapolis, IN Leslie C. Thorne Haynes and Boone LLP 600 Congress Avenue Suite 1300 Austin, TX

2 Introduction The following materials and our seminar presentation focus on the practical and ethical considerations that an attorney must navigate in working with witnesses in an insurance coverage case. The following areas will be discussed in detail (1) selecting and interviewing potential party and non-party deposition and trial witnesses; (2) the unique considerations that counsel must keep in mind when dealing with former employees of the client; and (3) the preparation of client witnesses for deposition and trial how to prepare yourself AND the witness. The first section of our written materials and first part of our seminar presentation will explore (a) the best methods by which to identify persons having knowledge of key facts involved in the coverage case, (b) the review of documents with persons interviewed: how to balance the benefits of refreshment of recollection versus the possible downside of education of new facts previously unknown to witness, (c) how to document/record witness interviews to best ensure protection of such from discovery, (d) steps to take to confirm person understands role of counsel (i.e., representation of company/employee in corporate capacity versus personal representation) (e) steps to take when witness provides information which necessitates that he has his own personal counsel, and (f) steps to take when witness interview reveals damaging facts. The second section of our written materials and second part of our seminar presentation will explore (a) steps to take when person with knowledge/ potential witness leaves company or is a former employee and how to contend with awkward situation when that employee left the client as a result of layoff or firing, (b) the determination as to whether former employee with knowledge/potential witness needs separate counsel, (c) when counsel s withdrawal as former employee s attorney is appropriate, and (d) maintaining and protecting attorney-client privilege with former employee witnesses. The final section of our written materials and final part of our seminar presentation will explore (a) steps to take when the witness tries to change his or her version of events from that put forth during the initial witness interview, (b) steps to take when documents or other discovery cast doubt on, or significantly change, witness s version of events, (c) the balance between the coaching of the witness for testimony versus scripting the witness s testimony, (d) steps to take when witness refuses to follow advice of counsel in connection with testimony, (e) specific deposition and trial witness preparation tips, and (f) how to ensure deposition and trial witnesses avoid potential and typical pitfalls and a discussion of such deposition and trial testimony pitfalls. I. Selecting and Interviewing Potential Deposition and Trial Witnesses in the Insurance Coverage Case The process of selecting a witness and conducting a witness interview is a great investigative tool to build a successful case on behalf of the client. However, disregarding important ethical considerations while going through this process, may derail the attorney s progress at a deposition or trial. Conducting interviews of potential witnesses the right way can help an attorney ensure that the integrity of the client s case is protected if certain steps are taken. A. Prepare Yourself to Select and Interview the Potential Witness Before an attorney can prepare a witness, the attorney needs to be fully apprised of all pertinent issues in the case. The Model Rules of Professional Conduct require that the attorney provide competent representation to the client at all times. 1 The attorney should know why the witness is 2

3 necessary in their coverage case, determine the scope of the potential witness testimony for use at trial or the deposition, and establish what the goal of the witness testimony will be in the coverage case. This will help to ensure that the attorney can select the best witness on behalf of the client and that the witness serves his or her true purpose. The technique to prepare for the interview may vary depending on whether the potential witness is a client or non-party. However, the ethical considerations are very similar. An attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it. 2 The ethical line is crossed when the attorney influences the witness to alter testimony in a false or misleading way. 3 Clearly, there is a major difference between interviewing a potential witness and preparing a witness for a deposition or trial. However, there are two goals that are paramount in either situation: 1) obtain all the necessary information from the witness about the subject case; and 2) investigate the history of the witness. B. Selecting the Best Witness If it is a corporate witness, more likely than not, the attorney will be relying on the client to initially identify those individuals who may or should testify. However, the attorney should not rely on the client s input alone. Reasonable diligence and promptness are necessary when representing the client. 4 The attorney should conduct an independent investigation of what kind of witness is necessary to address the issue favorable to the case by requesting reports and personnel file pertinent to the issue at hand. If permissible, conduct multiple interviews. Also, the attorney should consider asking for a history of corporate representatives that may have previously testified on similar coverage issues in Court. C. Interviewing the Witness The initial meeting with a potential witness can be an awkward situation. The attorney should not make the situation more uncomfortable by being unprepared. Preparation is the key to a successful interview. The initial interview will set the stage for the attorney s relationship with the potential witness. The attorney should communicate to the potential witness that he or she is knowledgeable, prepared, and in control. Interviewing the potential witness is not a one-step experience. There are several important steps the attorney should take and important ethical considerations to keep in mind during the interview. Schedule the Interview at a Mutually Convenient Place and Time Be mindful of the potential witness schedule and make an effort to accommodate it. First impressions are lasting impressions. A little courtesy may go a long way in getting the witness to cooperate during the entire interview. Duty to Disclose the Attorney Client Relationship The attorney should not assume that disclosing certain information to the potential witness is unnecessary. The attorney has a duty to disclose his/her client to the potential and unrepresented witness, make sure that the potential witness does not misunderstand the attorney s role and the attorney should not give legal advice to the potential witness if the attorney knows or should know that there is a possible conflict. 5 If the witness expresses an interest adverse to the client during the interview process, Model Rule 4.3 requires that the attorney advise the witness to secure counsel. 6 1 MODEL RULES OF PROF L CONDUCT R. 1.1 (2009). 2 Genders v. United States, 425 U.S. 80, 90 n. 3 (1076) 3 Ibarra v. Baker, 338 F. Apex 457, 465 (5 th Cir. 2009) 4 MODEL RULES OF PROF L CONDUCT R. 1.3 (2009) 5 MODEL RULES OF PROF L CONDUCT R. 4.3 (2009) 3

4 How to Handle the Represented Witness If the witness is represented in your coverage case, the attorney is not allowed to interview the witness without the consent of the witness attorney or by law or court order 7. However, Rule 4.2 does not prohibit communication regarding matters outside the representation. What happens if the witness voluntarily agrees to be interviewed? Model Rule 4.2 still applies even if the witness initiates contact. Therefore, it is best to avoid contact with the potential witness altogether unless the other attorney is present. Record the Interview If the attorney is interviewing a non-party witness, the attorney must remember that the interview may be discoverable. The attorney should take good notes, have another person present, and consider recording the interview. Some courts have held that recorded witness statements obtained in an attorney interview are protected by the attorney client privilege. 8 where a witness statement reveals an attorney s impressions, conclusions, opinions, or legal research, the statement is entitled to absolute protection. This would include witness statements inextricably intertwined with the attorney s notes or comments, or where the questions asked (or not asked) provide a window into the attorney s theory of the case or evaluation of the issues. 9 However, there may be situations when the attorney does not want the witness interview to be recorded if it is anticipated that it may not help the client. This decision must be made on a case by case basis. Lay the Ground Rules of the Interview The attorney must set the tone and guide the interview process forward. By making sure that the potential witness knows what is going to happen during the interview process, the attorney begins to develop a rapport with witness. The attorney should also establish the following early in the interview process: 1) The purpose of the interview; 2) The areas the attorney wants to address in the interview with the potential witness; 3) The attorney should make sure the witness knows that he or she should answer truthfully at all times. The attorney cannot counsel or assist a witness to testify falsely. 10 4) Advise the witness as to what will or may happen after the interview process. Make sure not to divulge any information protected by the attorney/client privilege in the attorney s zeal to represent the client; 5) Remind the potential witness that just because they are being interviewed, it does not automatically mean that they will be deposed or called as a witness at trial; 6) Make sure to obtain all current contact information from the witness; and 7) Conclude the interview by thanking the witness for his/her time. Evaluate the Witness During the interview, the attorney should evaluate the witness from different vantage points. For example, the attorney should think about how jurors may view the witness background at trial. Consider how sophisticated the witness sounds in person versus how he or she will sound in the witness deposition transcript. This will help the attorney to determine how favorable or unfavorable this witness could be to the client s case and as the attorney plans for the witness preparation for trial or depositions later. 6 Id. 7 MODEL RULES OF PROF L CONDUCT R. 4.2 (2009) 8 Coati v. Superior Court, 54 Cal. 4th 480 (2012) 9 Id. at 54 Cal. 4th at MODEL RULES OF PROF L CONDUCT R. 3.4(b) (2009) 4

5 Start on a very basic level to evaluate the witness credibility. Illustrative examples include: Do they present well? Articulate? Knowledgeable? Argumentative? Likeable? Confident? Sophisticated? Bad Habits? Investigate the employment history of the witness to confirm whether there are disciplinary problems or blemishes in their personal history that may affect their credibility. Most importantly, do not be afraid to advise the client that the potential witnesses should be excluded. The attorney has a duty to conduct reasonable due diligence to identify the best possible witnesses for the client s case. The attorney may not meet this obligation if the wrong witness is selected. Know What Not to Do During an Interview The ABA Model Rules of Professional Conduct shed light on actions an attorney should not take during the interview of a witness. For example, an attorney should not: 1. Make a false statement of material fact or law to a third person 11 ; 2. Offer evidence that the attorney knows to be false 12 ; 3. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; 13 ; 4. Engage in conduct that is prejudicial to the administration of justice; 14 or 5. An attorney may not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person in a relative or an employee or other agent of a client; and (2) the attorney reasonably believes that the person s interests will not be adversely affected by refraining from giving such information. 15 Don t forget about the Attorney Client Privilege Refrain from directly or indirectly discussing privileged information that would reveal the client s trial strategy or impressions. Any unprivileged information is fair game. For example, if the witness has information about the opposing side s actions that support s the client s coverage defense, explore this information thoroughly. The attorney should not be afraid to address any damaging information the witness may have that challenges the client s position in the case. The attorney can use the interview to ask more questions to draw important distinctions between the witness and client s version of events. Alternatively, the attorney can offer dissimilar scenarios to determine if the witness testimony will remain the same. Using the interview to fully investigate damaging information may allow the attorney to mitigate the client s exposure and rehabilitate the situation after conferring with the client. Obtain the Right Information Prior to the interview, the attorney should outline all of the information to be obtained from the potential witness. The attorney should never divulge any information protected by the attorney client privilege, unless there is client permission to do so. 16 Make sure to review non-privileged documents with the potential witness. If the client gives the attorney consent to review privileged documents, feel free to do so. Make sure to fully investigate the position of the witness and his or her knowledge on a particular issue before showing a document they may have never seen before. If the witness reaction or statements are negative regarding the document, this may alert opposing counsel about a potential weakness in your case. Weigh the probative value of reviewing the document 11 MODEL RULES OF PROF L CONDUCT R. 4.1 (2009) 12 MODEL RULES OF PROF L CONDUCT R. 3.3 (a)(3) (2009) 13 MODEL RULES OF PROF L CONDUCT R. 8.4(c) (2009) 14 MODEL RULES OF PROF L CONDUCT R. 8.4(d) (2009) 15 MODEL RULES OF PROF L CONDUCT R. 3.4(f) (2009) 16 MODEL RULES OF PROF L CONDUCT R. 1.6 (2009) 5

6 with the potential witness versus revealing new and unfavorable facts to the opposing counsel. In the attorney s zeal to be the best advocate for the client, be extra careful not to coach the witness. Identify Bias The attorney should also keep an eye out for obvious or covert bias during the interview process. For instance, if the potential witness knows the client or another party, the attorney should fully explore the nature of that relationship. If the witness is clearly favorable to the attorney s client, it is imperative that the attorney build a relationship with the witness so that the witness will remain cooperative. However, this cooperation should not encourage or cause the attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or violate any ethical rules. Additionally, if the witness remains neutral, be careful not to push him or her into an unfavorable position with the attorney s tone and interviewing techniques. Once the attorney has determined that the potential witness is acceptable, the attorney can then begin preparing the witness for the deposition or trial and take a wide range of permissible witness preparation activities including, but not limited to: Inviting the witness to provide truthful testimony favorable to the attorney s client; Discussing the role of the witness and effective courtroom demeanor; Discussing the witness recollection and probable testimony; Revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness recollection or recounting of events in that light; Discussing the applicability of law to the events in issue; Reviewing the factual context into which the witnesses observations or opinions will fit; Reviewing documents or other physical evidence that may be introduced; and Discussing probable lines of hostile cross-examination that the witness should be prepared to meet. Witness preparation may include rehearsal of testimony. An attorney may suggest choice of words that might be employed to make the witness meaning clear. However, an attorney may not assist the witness to testify falsely as to a material fact. 17 With preparation and efficient interviewing skills, an attorney can select the best witnesses for their coverage case. Along the way, the ethical considerations must be made to ensure that the attorney will make the best decisions on behalf of their client. II. Considerations in Witness Interviews and Deposition and Trial Preparation of Former Policyholder or Insurance Company Employees 17 Section 116 of the Restatement of the Law Third, The Law Governing Attorneys, Comment (b) 6

7 In the day to day businesses of policyholders and insurance companies alike, employees frequently move from one job to another. What happens when employees leave the company, taking their knowledge of facts and events pertinent to litigation with them? These former employees may possess relevant or possibly crucial information to a coverage case. You may even wish to represent the former employee along with your party client. The benefits of such representation can be significant, providing privilege protection to your conversations and deposition or trial preparation of the former employee. There can also be countervailing disadvantages- you will not likely to be able to paint this witness as disinterested or neutral with complete success once you are in an attorney-client relationship. Furthermore, there are ethical concerns in the form of conflicts of interest that must be fully assessed. It is critical to think through all of these issues before determining if representation of a former employee is advisable. As counsel to a party, you must approach interaction with former employees while keeping both ethical and strategic considerations at the forefront. 1. Identifying and Approaching Former Employee Witnesses In the course of investigating the facts of your insurance coverage case, including reviewing documents and talking with your client, you are likely to learn that one or more former employees have knowledge germane to the case. Once you determine you need to talk with a former employee, you must then gather as much background information on the former employee as reasonably possible. At a minimum, you will want to find out their previous role with the company, potential involvement in the circumstances giving rise to the lawsuit, and whether the former employee gave any prior testimony, affidavit, or other statement on behalf of the company. You should also find out as much as you can about the former employee s personality and the separation from employment, including if there are factors related to the separation that may impact cooperation and/or credibility. Of course, you will also need to determine where and how best to locate the former employee, and you should inquire if the former employee maintains ongoing contact with current client employees. A current employee making the initial contact to set up a meeting with the witness may be received much more favorably than a cold call from counsel. All of this background preparation will go a long way to help you approach the former employee in the most effective possible way. It is best to make contact with former employees early in the litigation, and if you decide it is permissible and appropriate, to enter into any attorney-client relationship with the former employee as soon as possible. This has two advantages: (1) it prevents opposing counsel from communicating with that former employee and (2) helps to diffuse arguments about the propriety of the representation. Representing a former employee for many months prior to a deposition certainly comes across better than being retained the day of or day before the deposition (although there is nothing necessarily improper under such circumstances). Be mindful of how you enter into any attorney client relationship with a former employee. If the former employee asks you to represent him or her, and there are no other impediments to the representation, there should not be any issue. But, if you offer to represent the former employee, there is some possibility the offer could be viewed as a violation of the rule of professional conduct prohibiting an attorney from directly soliciting employment. 18 Again here, it may be best if your client communicates with the former employee with the option of providing legal counsel if desired. If you ultimately decide that representing the former employee is the correct course of action, enter in to an engagement letter with the former employee memorializing the attorney-client 18 Model Rules of Prof l Conduct, R. 7.3 (2005). 7

8 relationship both to protect your relationship with your initial party client and to bolster assertions of privilege between you and the former employee. 2. Potential Conflicts of Interest As a preliminary matter, you must assess whether you have any actual or potential conflict of interest in representing the former employee. Model Rule of Professional Conduct 1.7 prohibits joint representation if there is a concurrent conflict of interest. Such a conflict exists if there is a direct conflict or if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client. This type of situation often arises when the joint parties at first appear to be on the same side, but subsequent facts are revealed by one client that are advantageous to that client but adverse to the other client. While this may be difficult to identify at the outset, performing due diligence into the former employee's involvement and relationship with your client often allow the attorney to determine if a conflict might arise later in the case. You should also assess if there are reasons your client would want distance itself from the former employee such that representation is not advisable despite lack of conflict (for example, unrelated criminal conduct by the former employee). If there is any possibility that your client and the witness will have adverse interests, for example, if the former employee may be accused of wrongdoing outside of the scope of employment in the litigation, you should not represent the former employee. However, if the former employee s interests are aligned with your current client s interests, you may wish to represent the former employee as well. Of course, if facts later arise creating a possible conflict, you should withdraw from representation of the former employee immediately. Make sure that your engagement letter states that in the event of any conflict coming to light, you will withdraw from representing the former employee and will continue to represent the party client. 3. Protecting Attorney Client Privilege Virtually all courts find that communications that were privileged during employment retain their privileged status even after an employee leaves the company. Some courts extend the privilege to communications after employment ends, yet others do not recognize such an extension. 19 In fact, in regard to depositions, a majority of cases refuse to extend the attorneyclient privilege to deposition preparation sessions with former employees absent an independently formed attorney-client relationship. 20 Courts have found communications between counsel and a former employee in deposition preparation and during breaks in a deposition not protected by privilege, as those communications could have influenced the former employee s testimony. 21 For this reason, it may be beneficial to form an attorney client relationship where appropriate with a former employee, particularly if you believe the former employee will be deposed. However, you must be aware of the law in your particular jurisdiction because some courts have balked at extending the privilege in situations of volunteer representation of former employees by corporate counsel. 22 Unless and until such a relationship is formed, you must assume all 19 See Phillip F. Ackerman et al., Attorney-Client Privilege in Civil Litigation, Protecting and Defending Confidentiality 230 (Vincent Walkowiak, ed., ABA 3d ed. 2005). 20 See Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303 (E.D. Mich. 2000) (counsel s communications with former employee of client company treated no differently than communications with any third party fact witness); Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) (attorney-client privilege did not protect communications between counsel and former supervisor to the same extent as communications between counsel and current employee; however, communications with former supervisor regarding underlying facts of the case that the supervisor knew only because of her employment would be protected, regardless when the communications occurred); Winthrop Resources Corp. v. Commscope Inc. of N.C., No. 5:110CV0172, 2014 WL (W.D. N.C. Nov. 7, 2014) (following Peralta). 21 United States v. Merck-Medco Managed Care, LLC, 340 F. Supp. 2d 554 (E.D. Pa. 2004) (explaining that if the communication occurred during employment or involved information relating to the employee's conduct or knowledge during employment, the communication is protected, otherwise it is not). 22 See Wade Williams Distribution, Inc. v. American Broadcasting Companies, Inc., No. 00 Civ. 5002, 2004 WL , at *1 & n.2 8

9 communications with the former employee are discoverable and not reveal any privileged information or work product, including litigation strategy, to the former employee. 4. Compensation to Former Employee Witness When a witness has moved onto other employment, or retired, or is still looking for work after separation from employment, and is asked to spend time to participate in litigation by meeting with counsel, preparing for deposition, and possibly testifying in court, the ethical question often arises whether the witness may be compensated for the time and expenses involved. Naturally, it is preferable to not pay the former employee at all to avoid any appearance of compensation influencing testimony. However, a witness may feel taken advantage of and have little incentive to give any effort if not reimbursed for time away from another position or other expenses incurred. The majority view is that compensation of fact witnesses for time and expenses incurred in preparation for and provision of testimony is permissible. Rule 3.4(b) of the Model Rules of Professional Conduct states that 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. However, comment 3 to Rule 3.4 makes clear that it is not improper to pay a witness s expenses. Rule 3.4(b) has been interpreted broadly, allowing for payment of reasonable expenses if it is made clear to the witness that the payment is not being made for the substance or efficacy of the witness s testimony, and is being made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party. 23 Factors used to determine whether payment to a fact witness is reasonable include reimbursing for a direct loss of income in the form of lost hourly wages or professional fees. 24 Where the witness has no direct loss of income, counsel is tasked with determining the reasonable value of the witness s time based on relevant circumstances. 25 It should go without saying that payment of any sort to influence testimony is absolutely improper and likely subordination of perjury. 5. Former Employees of Opposing Party If the witness was formerly employed by an opposing party, the considerations in contacting that witness are very different from those stated above. Of course, a key is the term former. If you have any question whether the witness may still be employed by the other party, you should confirm before even considering contact. In making contact, you should clearly identify your client, your role in litigation, and take care not to induce the former employee to disclose privileged information. In addition, you must inquire in your initial communication whether the witness is already represented by counsel. If so, you cannot speak to that witness without obtaining that attorney s consent. 26 Once you have determined the witness is indeed a former employee of the adverse party, and that former employee is not represented by counsel, you may be able to make contact with little or no restriction. In Indiana, for example, there are almost no restrictions on the ability of opposing counsel to communicate with unrepresented former employees of a party to the litigation. The seminal case on this point in that jurisdiction found that plaintiff s counsel was (S.D.N.Y. June 30, 2004) ( The mere volunteered representation by corporate counsel of a former employee should not be allowed to shield information which there is no independent basis for including within the attorney-client privilege. ). 23 ABA Comm. On Ethics & Prof l Responsibility, Formal Op (1996). 24 Id. 25 Id.. 26 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Model Rules of Prof l Conduct, R. 4.2 (2005). 9

10 permitted to confer with and obtain an affidavit precluding summary judgment from a former manager of a nightclub defendant, concluding that adverse attorneys are free to communicate with former employees about a pending case regardless of their position with the organization when they were employed or their role in the events giving rise to the litigation. 27 Indeed, Indiana has gone so far as to deny a defendant-corporation s request to know in advance what former employees a plaintiff intended to engage in ex parte communications, reasoning that nothing in Rule 4.2 bars an attorney making contact with the former employee of an adverse party. 28 However, some other jurisdictions take more limited views of permissible contact with former employees of opposing parties, finding that such contact is proper unless the former employee s acts or omissions may be imputed to the company or if there is an ongoing agency or fiduciary relationship with the company. 29,30 III. Preparation of Policyholder and Insurance Company Witnesses at Depositions and Trial An attorney may spend days or even weeks preparing to take a key deposition or examine an adverse witness at trial. But it is equally important for attorneys to spend sufficient time preparing to defend depositions or present their own witnesses at trial. Is the testimony necessary and appropriate? In the coverage litigation arena in particular, attorneys should spend some time determining whether a noticed witness actually needs to be deposed (or called at trial) in the first place. Many coverage cases involve discrete issues. While many witnesses may have knowledge of certain underlying facts, many of those facts do not actually have bearing on the coverage issues. This is especially true in cases concerning a carrier s duty to defend. Most states follow the four corners or eight corners rule, pursuant to which a judge will examine the underlying complaint and the policy at issue to determine whether the carrier has a duty to defend. In these cases, no deposition should be necessary, potentially aside from corporate representative depositions. Even where the litigation involves the duty to indemnify, few depositions should be needed, especially if the underlying case went to trial. In many cases, the trial testimony or depositions taken in the underlying suit should suffice. On the carrier side, carriers may want to oppose the deposition of claims adjusters unless the insured has made bad faith allegations. So the attorney has now decided that he needs to present his witness. What now? Preparing yourself Before ever preparing his witness, an attorney must prepare himself. First and foremost, it is critically important to have a clear idea of what the testimony and, therefore, the witness preparation session will entail. It should go without saying that the most important preparation an attorney can do is to know his file the pleadings, the documents, and the prior deposition testimony. How does the witness fit into the fabric of the case? What might the other side try to establish with this witness? What does the witness attorney need to establish with this witness? To best prepare a witness, his attorney should understand and explain to the witness how he fits into the case and how he can help establish the subject claim or defense. To do this, attorneys should 27 P.T. Barnum s Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. Ct. App. 2002) (trans. denied). 28 E.E.O.C. v. SVT, LLC, 297 F.R.D. 336 (N.D. Ind. 2014). 29 See, e.g., Lang v. Superior Ct., 826 P.2d 1228 (Ariz. App. 1992). 30 A very small minority of decisions have been more restrictive, finding that all ex parte interviews of all former employees of an opposing party are per se in violation of Rule

11 examine the file and create an outline (and, where appropriate, a timeline of events) regarding the issues relevant to the witness. Equally important, what documents implicate the witness? Nothing rattles a witness more than being presented during examination with a problematic document he has forgotten that he authored or received. Knowing the universe of key documents outstanding that the witness may have authored or have received goes a long way to keeping the witness calm and collected in the chair. And what have other witnesses said about this witness or the subjects on which he will testify? Imagine a bad faith case where one adjuster says that something is always done when another adjuster has already admitted that it was not done in the instant case. Litigation is about putting together a puzzle. Making sure that the puzzle pieces fit together while, of course, always being truthful is the attorney s job. If one witness needs to know about another witness testimony, it is the attorney s duty to know that and convey it. Preparing your witness So, now the attorney knows his file inside and out. How best to tell the witness what he needs to know? Given that most witnesses are extremely nervous about giving their deposition or trial testimony, it is advisable to meet with important witnesses for several hours shortly before the day of examination. In a document-heavy case, the attorney also may want to provide the witness with a notebook of key documents and prior deposition testimony. Attorneys should also arrange to have coffee or breakfast with the witness on the morning of examination, to (again) go over the case themes, most important facts and documents, and the basic rules of testifying. But what is most important is to spend sufficient time and really focus the witness attention. A witness who is unfocused during a preparation session will be a poor witness under oath. A key tool in focusing the witness and an otherwise important thing often lost in a preparation session is actually listening to his story. This preparation session may be the longest sustained period that an attorney gets with the witness. It is important to take advantage of that and learn every detail of what the witness knows. If this differs from what the attorney previously understood from documents or an earlier interview (which certainly happens), better to know before the witness is under oath. When it comes to depositions, most attorneys already know the long list of rules: Listen to the question, answer only the question asked, make sure you understand the question, tell the truth, don t guess, etc., etc., etc. But many witnesses after hearing hour-long explanations of what to do and not to do can get lost in the weeds and forget the basics. Attorneys therefore should go over all of the deposition rules and then close with a Top 10: 1. Tell the truth. A basic, but a really important one. 2. Be the teenager. 31 In other words, only answer the question that is asked: How was school? Fine. 3. Documents say what they say. Don t extrapolate. What it says is what it means. 4. You probably don t know if you agree. When asked, Do you agree?, you probably don t know and would need time to think about it. 5. If my aunt were a man If the questioner says if or I m going to ask you to assume, don t speculate. 6. Learn to love the awkward silence. Don t keep talking! 7. If you don t remember, you don t remember. You still don t remember. You still don t remember. 31 Thanks to Liz Klingensmith for inventing this one. All witnesses remember it. 11

12 8. Don t assume you know or should know. The questioner may act as though you re an idiot for not knowing something. You re not. 9. Don t guess. If you don t know, you just don t know. 10. Never say never or always. It s never true. It s always wrong. Or almost always. If the witness forgets everything else and just remembers these simple rules, he should come out of the deposition intact. During a deposition Questioners have great leeway in what they ask. But an attorney must remain a strong advocate during his witness deposition. To do this, attorneys must be familiar with the rules of the jurisdiction. Attorneys should object when necessary, in line with those rules. While many jurisdictions limit an attorney s ability to make speaking objections thereby (arguably) coaching his witness on what the answer should be it is best to tell a witness in advance that if the attorney objects, the witness should pay special attention to the question because there may be something misleading or wrong about it. Defending attorneys also should listen very carefully to their witnesses testimony. If the witness says something that is incorrect, advise him of his mistake during a break and have him correct it. In a similar vein, an attorney should always be prepared to ask a few questions if need be. Many times, something in the witness testimony needs to be clarified after the questioning attorney has completed his examination. But attorneys should always be mindful to warn their witnesses if they plan to ask any of their own questions. After a deposition The attorney is not finished with his witness when the deposition ends. In most jurisdictions, witnesses have the right to read their deposition transcript and make any necessary corrections. Not only should the witness read the transcript; his attorney should read it as well. This is useful in determining whether the transcript needs to be corrected and also in deciding whether that testimony needs to be clarified at trial or by another witness. Trial! The depositions are finished. The motions have been decided. It s time for trial. Should an attorney prepare his witness differently for trial than for deposition? In many ways, yes. As with deposition preparation, an attorney must ensure that his witness understands the case themes and his importance in establishing the claim or defense. As with depositions, the witness must also be intimately familiar with documents and prior testimony that may bear on his testimony. When it comes to trial, that includes his own deposition. Many a witness has been tripped up by his prior testimony. Attorneys need to thoroughly prepare their witnesses with respect to dealing with any problematic prior testimony and how that may be clarified or explained at trial. But the principal difference between deposition and trial testimony is that the initial questioning typically (although certainly not always) is done by the attorney who is sponsoring the witness. Given the general rule against leading questions, an attorney needs to spend ample time going over the questions that will be asked and making sure that the answers are what he expects. Someone once said that an attorney should never ask a question at trial if he doesn t already know the answer. This is especially true when it comes to one s own witness. The best way to avoid an unhappy surprise is to make sure that everyone is one the same page ahead of time. 12