Ethical Limits in Witness Preparation. Susan J. Kohlmann February 24, 2017

Transcription

1 Ethical Limits in Witness Preparation Susan J. Kohlmann February 24, 2017

2 Ethical limits in Witness Preparation The line between permissible conduct and impermissible coaching is like the difference between dusk and twilight Adam Liptak, Crossing a Fine Line on Witness Coaching, N.Y. Times, Mar. 16, 2006, quoting Professor James A. Cohen of Fordham University. 2

3 Conflicting Repercussions Government lawyer provided trial transcripts and coaching to 7 witnesses in violation of a court s sequestration order. The judge barred the government from using testimony or evidence from those 7 witnesses. Earlier 2000 Fourth Circuit decision reversed a similar order where earlier testimony was described to a witness. Court said the sanction was too harsh. 3

4 Where do you draw the line? Can you educate a witness on the applicable law? Can you refresh/change a witness s recollection: talk about other witness s testimony and documents? Can you tell a witness to limit his or her testimony to first-hand knowledge, non-speculation? Can you add to a witness s knowledge? Can you script answers / non-responsive answers? 4

5 Witness Preparation the Ethical Boundaries: THE U.S. RULES ARE OPAQUE: NY Rule 3.4(a)(5) and Comment [1] prohibit influencing witness improperly Geders v. U.S., 425 U.S. 80, 90 n. 3 (1976) ( [a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it. ) An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way. Ibarra v. Baker, 338 F. App'x 457, 465 (5th Cir. 2009) 5

6 Other Countries Prohibit Witness Preparation England, Belgium, Italy, France and Switzerland have codes of conduct that prohibit witness preparation. The International Criminal Court at the Hague considered the issue and ruled preparation may diminish what would otherwise be helpful spontaneity during testimony. (ICC-01/04-01/06) Witness familiarization (explaining the proceedings and roles) is allowed. Witness proofing (reviewing the evidence to ensure more accurate, complete and efficient testimony ) is prohibited. 6

7 EXAMPLE OF NOT WALKING THE LINE: From the criminal prosecution of United States v. Steven Woghin (General Counsel, Computer Associates) for obstruction of justice: The defendant STEVEN WOGHIN met with various CA employees and instructed them regarding the manner in which they should answer questions when they were interviewed by the government or the Company s Law Firm: When Employee #1 communicated to Woghin that he/she knew [aboutca s wrongdoing], WOGHIN repeatedly instructed Employee #1 not to speculate, and not to acknowledge any facts that were not within his/her personal knowledge. WOGHIN gave these instructions despite the fact that WOGHIN knew and understood that Employee #1 was, in fact, speaking from personal knowledge.woghin s instructions were intended to persuade Employee #1 not to acknowledge, in interviews with the Company s Law Firm or the government, that [wrongdoing] existed at CA. (Information, U.S. v. Woghin, 04 Cr 847 (ILG) (E.D.N.Y. Sept. 21, 2004). 7

8 A Hypothetical Company claims that its Board of Directors authorized option grants at its February meeting, even though the grants were not actually awarded to the executives until May. Did the Board approve the grants at its February meeting or its May meeting? The written minutes of both board meetings are of the short form variety and note only that stock options for senior management were discussed at both meetings. The formal resolution, dated and executed in May, recites that it is implementing the Board s decision made in February. 8

9 Polling Question #1 What can the lawyers do in preparation: 1. You have to tell the truth, but you don t have to provide the details unless you re specifically asked for them. Try to give short, summary answers. Permissible preparation? a. Yes b. No 9

10 Polling Question #2 What can the lawyers do in preparation: 2. For example, if you re asked: Tell me what happened at the May meeting, you can simply answer: We discussed many different things, as the agenda and minutes show. We certainly discussed the option grants. Permissible preparation? a. Yes b. No 10

11 Polling Question #3 What can the lawyers do in preparation: 3. If there s a follow-up question, like: What was specifically said about the timing of the option grants? you can say: Among other things, we talked about the fact that we thought they would incentivize our management. Or: We discussed the impact of them on the executives, and other things. Permissible preparation? a. Yes b. No 11

12 Polling Question #4 What can the lawyers do in preparation: 4. If you re asked: Did the Board authorize the options at the May meeting? you can truthfully say: I don t remember that happening at the May meeting based on what you ve just told us. Or you can say we didn t discuss timing. Permissible preparation? a. Yes b. No 12

13 Polling Question #5 What can the lawyers do in preparation: 5. If you re asked: Did the Board authorize the options at the February meeting? you can say something like: We discussed the options at that meeting. Or I m sure we authorized many things at the February meeting. Permissible preparation? a. Yes b. No 13

14 Obviously Proper Purposes Learn facts from witness Assure witness s testimony will be clear, accurate and admissible Help witness avoid cross-examination tricks and other potential witness pitfalls (e.g., pejorative phrasing) 14

15 Witness Preparation the Ethical Boundaries: Restatement Sec. 116, comment 3, approves traditional techniques. The preparing lawyer can Discuss witness s probable testimony Reveal to witness testimony of others, or other evidence Ask witness to reconsider recollection in light of other evidence Discuss applicable law Disclose factual context of witness s testimony Discuss probable lines of cross-examination Suggest choice of words to make witness s meaning clear Rehearse testimony 15

16 Witness Preparation the Ethical Boundaries: But traditional techniques can be used unethically: Where purpose/result is to change testimony and avoid truthful testimony Even don t volunteer and don t speculate can be unethical (U.S. v. Woghin (EDNY 2004)) Instructing witness to say I don t know or I don t remember can be unethical Educating party-witness about applicable law before eliciting facts is questionable; educating non-party witness about applicable law may be difficult to justify Suggesting a non-responsive answer ( duck the question ) is highly questionable and risks perjury. 16

17 Practical pitfalls of refreshing a witness s recollection: What s producible? Federal Rule of Evidence 612 generally has been interpreted as requiring the production of documents that were used during deposition preparation to refresh a deponent s recollection, subject to a balancing test. Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 617 (S.D.N.Y. 1977) (stating that counsel may not (1) deliver work product to an expert or other witness to be useful to the client, but then (2) withhold the material from an adversary who seeks to exploit the fact of this assistance in cross-examining the witness. ) Think strategically and ethically about how you prepare a witness. 17

18 Practical pitfalls of refreshing a witness s recollection: What s producible? Contemporary Rule 612: Balancing Adversary s Interest in Disclosure with the Privileges Nutramax Labs., Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) (finding that the policy of protecting attorney mental impressions that may be evident from the selection of documents used in witness preparation can be trumped by Rule 612, subject to a nine-part balancing test; required production of documents reviewed by Rule 30(b)(6) corporate witnesses but not fact witnesses). Relevant factors include: (1) whether production is necessary for a fair cross-examination; (2) the extent to which reviewing the document impacted the witness's testimony; (3) whether the witness was himself the author of the document (and therefore whether the document represents a mere memorialization of the witness's knowledge); (4) whether the party seeking production is engaging in a fishing expedition. In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 79349, at *10-11 (S.D.N.Y. June 5, 2012) (requiring application of balancing test prior to ordering production of spreadsheet used by expert witness to refresh recollection). Only the portion of the document relating to testimony based on the refreshed recollection is producible. In re MTBE at *12-*13. 18

19 Practical pitfalls of refreshing a witness s recollection: What s producible? Work product privilege protects the preparation work of trial and deposition consultants. In Re Cendant Corporation Sec. Litig., 343 F.3d 658 (3d Cir. 2003) (permitting only limited inquiry into whether witness testimony was practiced or rehearsed ); Hynix Semiconductor, Inc. v. Rambus Inc., 2008 U.S. Dist. LEXIS , at *29 (N.D. Cal. Feb. 10, 2008) (permitting inquiry on witness meeting with jury consultant limited to the purpose of any such meeting, who was present, the duration of the meeting and whether the witness practiced or rehearsed his or her testimony. ). 19

20 Polling Question #6 Practical pitfalls of refreshing a witness s recollection: What s producible? Scenario One: A nervous witness drafted a list of 30 questions he expected to receive on direct examination, along with his planned answers. The witness discusses his planned answers with counsel. During practice examination sessions with counsel, he referred to the list. 6. Must it be produced? Is it ethical? a. Yes b. No 20

21 Polling Question #7 Practical pitfalls of refreshing a witness s recollection: What s producible? A Hypothetical Scenario Two: Counsel drafted a list of 30 questions and answers for the direct examination of a witness. Counsel gave the Q & A s to the witness. Counsel and the witness discuss the list and change certain answers. During practice examination sessions, the witness kept the list by his side and occasionally glanced at it. 7. Must it be produced? Is it ethical? a. Yes b. No 21

22 TACTICAL VS. ETHICAL CONSTRAINTS: Straightforward but bad answer vs. Lack of credibility caused by evasiveness 22

23 Rule 30b(6)Corporate Witnesses Rule 30(b)(6) of the Federal Rules of Civil Procedure allows a party to name a corporate entity (or other organization), rather than a specific individual, in a notice of deposition and to identify the subject matters to be explored. The designated corporate witness need not have personal knowledge of the matters identified in the notice, or be the person with the most personal knowledge on the matters identified. Preparation of the designated witness may require the lawyer to investigate and supply facts to the witness for the witness to testify concerning those facts. See, e.g., Black Horse Lane Assocs., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000) ( [W]hen a witness is designated by a corporate party to speak on its behalf pursuant to Rule 30(b)(6), producing an unprepared witness is tantamount to a failure to appear that is sanctionable. ). What is done to prepare is discoverable. Generally, the same ethical rules apply 23

24 Witness Preparation the Ethical Boundaries: One test: Does preparation create an unreasonable risk that preparation will affect substance of witness testimony so that it is less accurate? Other tests: Witness Preparation is helping witness adapt untutored testimony into effective trial testimony Witness Coaching is telling witness what to say, not how to say it, where content differs from witness natural testimony It s OK to get facts from the witness, not OK to pour facts into the witness the only touchstones are the truth and genuineness of the testimony to be given. 1 1 D.C. Bar Legal Ethics Committee, Op. No. 79 (Dec. 18, 1979). 24

25 Witness Preparation the Ethical Boundaries: Traditional advice to witnesses is OK, e.g., Don t volunteer Fine to say I don t know or I don t remember Don t speculate first-hand knowledge only Make examining lawyer work for answers use shortform responses Listen to the question answer only the question Tell the truth 25

26 Witness Preparation the Ethical Boundaries: Add to this list: Nothing is more important that your being able to sleep well the night after you ve given your testimony. You needn t be bashful when asked what you did to prepare for your testimony our prep session is entirely proper and ethical! 26

27 THANK YOU! 27