SEX, and VIDEOTAPE: The Ethics of Witness Preparation. Courtney C. Shytle Patrick J. Cleary

Transcription

1 SEX, and VIDEOTAPE: The Ethics of Witness Preparation Courtney C. Shytle Patrick J. Cleary

2 Depositions are widely recognized as one of the most powerful and productive devices used in discovery. Since depositions are so important in litigation, attorneys face great temptation to cross the limits of acceptable behavior in order to win the case at the expense of their ethical responsibilities to the court and their fellow attorneys. Claiming that any such improper behavior was merely "zealous advocacy" will not justify discovery abuse. In re Anonymous Member of the SC Bar, 552 S.E.2d 10 (SC 2001).

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5 Drawing the Line "A lawyer has an ethical duty to prepare a witness." In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev.1998). "It is the usual and legitimate practice to confer with a witness prior to giving testimony but these practices are often abused." Mango Co v. Fire Ass'n. Of Philadelphia, 20 F.R.D. 181 (S.D.N.Y. 1957). "The witness underwent intensive coaching prior to trial, to freeze his testimony, prevent unexpected responses, and assure he would provide critical information without tedious, repetitive pinpoint questioning. This is not improper, so long as the testimony actually given is truthful." U.S. v. Johnson, 487 F.2d 1318 (5th Cir. 1973).

6 Impermissible Conduct: The Basics "A lawyer may not knowingly counsel a client to engage in criminal or fraudulent conduct, BUT a lawyer may discuss the legal consequences of conduct and make a good faith effort to determine the scope & application of the law." S.C. App. Ct. R (d). "A lawyer must not falsify evidence, counsel a witness to testify falsely, or offer an inducement to a witness that is prohibited by law" Rule 3.4(b) Pay a witness's expenses Permissibly compensating an expert Pay an occurrence witness any fee for testifying Pay an expert a contingent fee. (Comment. 3) "A lawyer may not assist the witness to testify falsely as to a material fact." Restatement of Law Governing Lawyers, Section 116.

7 Candor Toward the Tribunal Rule 3.3 (a)(1) lawyer may not knowingly make a false statement of material fact/law Remedy: correct statements made by the lawyer (a)(3) a lawyer may not knowingly offer false evidence Remedy: take reasonable remedial measures if lawyer becomes aware counsel client not to offer evidence refusal to offer evidence withdrawal from representation disclosure to tribunal See Comments 5, 6, 10, 15 May not refuse to offer client's testimony where reasonably believes but does not know the testimony to be false. (Comment 9).

8 Shades of Gray Competent handling includes adequate witness preparation SC App. Ct. R. 1.1 "Fair competition is secured by prohibitions against improperly coaching witnesses" SC App. Ct. R. 3.4 The boundaries of proper witness preparation are largely controlled by a lawyer's own informed conscience. Wydick, "The Ethics of Witness Coaching" 17 Cardozo L. Rev. 3 (1996).

9 "The Lecture" "Arming the client with pertinent legal information and trusting him to make good use of it demonstrates loyalty and zealousness." "Recognizing that at some point a loyal servant can be manipulated into becoming an accomplice in a crime is honoring the boundaries of the law." Knowing how to flirt with the boundary but not cross it is true professionalism. Hodes, "The Professional Duty to Horse-shed Witnesses Zealously and Within the Bounds of the Law" 30 Tex. Tech. L. Rev (1999).

10 Permissible/Expected Coaching Providing witness with overview of deposition process and logistics Reviewing documents/discovery responses applicable to the witness Discussing litigation themes and safe harbors Suggesting language to make meaning clear

11 Borderline Coaching? Wood-shedding the witness Providing actual responses, even if not false Lecturing on the applicable law Selectively refreshing the witness's memory

12 Impermissible Coaching Encouraging, facilitating or allowing false testimony Preemptively instructing witness not to answer questions on particular topics Representing to counsel false statements of deponent's knowledge

13 Take Aways Duty to Prepare/Coach Witnesses Duty to Avoid Impermissible Coaching Touch of Grey Between Permissible/Impermissible Coaching

14 Anatomy of a Murder "Defining the line between preparing witnesses by informing them of a legal theory and improper coaching is a nuanced issue." Nunn v. Noodles &Co, 2010 WL (D. Minn. 2010) (quoting Anatomy of a Murder).

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16 Anatomy of a Murder Did Beigler go too far? Did he only "explain a matter to the extent reasonably necessary to permit the client to make informed decisions?" What if he had told Lt. Manion, "Look, your only chance here is some sort of temporary insanity. Could that have been what happened?" Is this all just a matter of timing? Defenses before facts? Does this knowing facilitate perjury? Did Beighler recommend anything? (Rule 1.2, Comment 9). "There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity."

17 Conferring with the Witness During the Deposition The Rules are Varied

18 Things to Consider Know the Rules Know the Witness Know the Timing Court Rules Negotiated Protocol Corporate representative Managing agent Former Employee Low level Employee Question is Pending Requested or Scheduled Break New Document Presented After Cross Examination

19 Policy Considerations Will not sacrifice witness's right to counsel in order to get witness's answer. The right to prepare a witness does not differ before the deposition begins from during the deposition. A lawyer and witness do not have an absolute right to confer Once a deposition starts, the right to counsel is tempered by the goal of getting to the truth. Any conflict between the right to counsel and the theoretical risk of improper coaching must be resolved "in favor of the right to the assistance and guidance of counsel."

20 Inappropriate Witness Coaching Speaking / Coaching objections Interrupting during testimony Interpreting questions Deciding which questions the witness should answer Helping the witness formulate answers Coaching the witness to change his/her testimony during breaks Instructing the witness not to answer questions that are not protected by privilege

21 Know the Rules Does the jurisdiction have a written rule or prohibition on conferences during deposition? Many jurisdiction are silent Assumption is that conferences during breaks are permissible absent express prohibition Majority rule is to allow conferences with full protection of privilege But jurisdictions are varied and some have significant limitations Have you negotiated a deposition protocol?

22 Know the Rules During a recess, an attorney for a deponent may communicate with the deponent; this communication should be deemed subject to the rules governing the attorney-client privilege. An attorney may confer with his client during a deposition recess that counsel did not request.

23 Know the Rules "It is one thing to preclude attorney-coaching of witnesses. It is quite another to deny someone the right to counsel. It is this Court's opinion that the right to counsel does not need to be unnecessarily jeopardized absent a showing that counsel or a deponent is abusing the deposition process." See In re Stratosphere Corp. Sec. Lit., 182 F.R.D. 614, 621 (D. Nev. 1998); see State v. King, 520 S.E.2d 875 (W.Va. 1999) Communications between counsel and witnesses during deposition breaks are protected by the attorney-client privilege. See In re Stratosphere Corp. Sec. Lit. ; MD Fla. Handbook on Civil Discovery Practice

24 Know the Rules Noting that there is little distinction between pre-deposition client preparation and continued preparation during a break or overnight recess. 2 MICRP EVID An attorney may confer with his client during a deposition recess that counsel did not request. Murray v. Nationwide Better Health, No , 2012 WL , at *5 (C.D. Ill. Aug. 24, 2012) (applying Stratosphere). Majority of jurisdictions alllow attorney/witness conferences during deposition breaks.

25 Know the Rules Counsel cannot engage in private off-the-record conferences with witness at all during deposition or any breaks, including evening recess, except for the purpose of deciding whether to assert privilege. Hall v Clifton Precision, 150 FRD 525 (ED Pa 1993) "Off the record discussions with the witness or discussion about the witness' testimony during recess are also improper coaching and should not be indulged in without agreement with opposing counsel." See 1-13 Dupont on Connecticut Civil Practice From the commencement until the conclusion of a deposition, including recesses or continuances, the attorneys for the deponent shall not consult with the deponent regarding the substance of the testimony already given or anticipated to be given except for the purpose of conferring on whether to assert privilege. Del. Ch. Ct. R. 30(d)(1)

26 Know the Witness A rule prohibiting a witness from consulting w his attorney during a break violated his constitutional right to retain hired counsel. Potashnick v. Port City Const. Co., 609 F.2d 1101 (5 th Cir. 1980) Officers, directors, and managing agents of a corporation. FRCP 37(b) Non-management employee Former employee

27 Know the Timing: Pending a question Witnesses are prohibited from conferring with counsel while a question is pending. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001)(citing Stratosphere). While a question is pending, counsel may not request a break except to discuss whether to assert privilege. See, e.g., S.D. Fla. Admin. Orders & at Rule 30.1(a)(2). A discussion to determine the existence of privilege is always allowed.

28 Know the Timing: Pending a question In re Anonymous, 552 SE2d 10 (SC 2001) The rule prohibits lengthy "speaking" objections and brief suggestive interjections, such as "if you remember" and "don't speculate." Improper for counsel to state their interpretations of questions and to rephrase questions for the witness.

29 Know the Timing: "Requested" Break If [the breaks] are requested by the deponent or the deponent s counsel, and the interrogating attorney is in the middle of a question, or is following a line of questions which should be completed, the break should be delayed until a question is answered or a line of questions has been given a reasonable time to be pursued. In re Stratosphere Corp. Sec. Lit. Attorneys may not confer with witness during requested breaks. See Coyote Springs Inv., LLC v. Eighth Judicial Dist. Ct., 347 P.3d 267, 267 (Nev. 2015).

30 Know the Timing: "Unrequested" or "Scheduled" Break Louisiana Civil Pretrial Procedure, Chap. 11, Sec. IV (2005) notes that breaks should be scheduled with the court reporter in advance because otherwise if a break occurred during a crucial point during a deposition a hostile witness would be afford[ed] a chance to recoup and consult with counsel before the deposition is continued. An attorney may confer with his client during a deposition recess or break that counsel did not request. Coyote Springs Inv., LLC v. Eighth Judicial Dist. Ct., 347 P.3d 267, 267 (Nev. 2015). Private conferences between counsel and the witness "during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held, however, during agreed recesses and adjournments." Tex. R. Civ. P (d)

31 Know the Timing: Before Direct Examination A deponent's consultation with his attorney after examination by the opposing party on a particular subject and before his own attorney's examination on that subject was proper. Oden v. Croda Int'l PLC, 170 FRD 66 (DCC 1997) While upholding prohibition of attorney-witness communication during cross examination, court allowed the defendant to consult with counsel during the break prior to the redirect examination, affirming that the court was "concerned only that 'the witness should not be coached during cross-examination.'" Aiello v City of Wilmington, 623 F.2d 845 (3d Cir. 1980)

32 The South Carolina Rule

33 South Carolina District Court Rule and SCRCP 30(j) Can only confer during deposition (including breaks & recesses) to determine privilege Opposing counsel can ask about conference to determine if witness coaching occurred Must affirmatively disclose conference and state purpose of conference on the record Conference is a waiver of attorney client privilege Improper conference is violation of discovery rules and can subject attorney/party to sanctions

34 In Re Anonymous Member of the S.C. Bar Off the Record Conferences: 30(j) makes clear that a deposition's beginning signals the end of a witness's preparation. Conferences called to assist a client in framing an answer, to calm down a nervous client, or to interrupt the flow of a deposition are improper and warrant sanctions. According to our rule, even during breaks in the deposition such as a lunch or overnight break, witnesses and their counsel cannot talk substantively about prior or further testimony in the deposition. Whether or not privilege is asserted, opposing counsel may inquire on the record into the subject of the conference to determine if there has been any witness coaching.

35 Key Exception to the South Carolina Conference Prohibition District Court of SC Document should be provided/identified 7 days before deposition. If not, witness and counsel given reasonable amount of time to privately discuss. SC State Court Document should be provided/identified 2 business days before deposition. If not, witness and counsel given reasonable amount of time to privately discuss.

36 Negotiate a Deposition Protocol Conferences during deposition Number of employee witnesses Location of depositions Prior identification of documents Time limitation of depositions Time allotments per party in multi-party litigation

37 Take Aways Know the Rules Know the Witness Know the Timing Negotiate Your Own Rules Be Prepared!