Presenting a live 90 minute webinar with interactive Q&A Ethical Challenges in Preparing Witnesses and Working with Experts Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses WEDNESDAY, JANUARY 25, 2012 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Teresa Rider Bult, Partner, Constangy Brooks & Smith, Nashville, Tenn. Lucia Coyoca, Partner, Mitchell Silberberg & Knupp, Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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Ethical Challenges in Preparing Witnesses and Working with Experts: Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses Teresa Rider Bult Constangy, Brooks & Smith, LLP Nashville, Tennessee www.constangy.com tbult@constangy.com Lucia E. Coyoca Mitchell, Silberberg & Knupp, LLP Los Angeles, CA www.msk.com lec@msk.com 5
Outline of Topics to be Discussed Applicable Ethical Rules Preparation versus coaching Ethical Issues in Witness Prep Clarifying testimony inaccuracies Use of mistakenly produced information Conferring with witness during recess Ethical Issues in Working with Expert Witnesses In-house counsel perspective 6
Applicable Ethical Rules 7
Applicable Ethical Rules Lawyer s Duty in Preparing Witnesses ABA Model Rule 1.3 -- Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Comment to Rule: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. 8
Applicable Ethical Rules Lawyer s Duty in Preparing Witnesses the #1 rule of any deposition ABA Model Rule 3.3(a) - Candor Toward The Tribunal A lawyer shall not knowingly...make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer... Or offer evidence that the lawyer knows to be false. Disciplinary Rule 7-102(A): A lawyer, shall not... Participate in creation or preservation of evidence when he knows or it is obvious that the evidence is false or counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. 9
Ethical Challenges with Witness Preparation 10
Ethical Challenges Preparation vs Coaching Clarifying testimony inaccuracies Use of mistakenly produced info Conferring with witness during recess Expert Witness Issues In House Considerations 11
Ethical Challenges Preparation vs Coaching 12
Ethical Challenges: Preparation vs Coaching Some take the position that any witness preparation distorts t the search for truth th and is thus improper. But witnesses entering a strange playing field need to be prepared p on how to deal with it. Witnesses credibility and testimony could be impacted by a trained attorneys questioning If they don t understand how the process works. Essentially being asked to enter a new country and need to know how to speak the language Lawyers are translators t» Small, Daniel L., Preparing Witnesses, A Practical Guide for Lawyers & Their Clients, American Bar Association Publication, 2004. 13
Ethical Challenges: Preparation vs Coaching A lawyer who did not prepare his or her witness for testimony, having had an opportunity to do so, would not be doing his or her professional job properly. District of Columbia Bar, Ethics Opinion No. 79 (1979), p. 139. As long as focused on developing and clarifying truthful testimony, such preparation may include the lawyer: Being persistent and aggressive in presenting [counsel s] theory of the case. RTC v. Bright, 6 F.3d 336, 342 (5 th Cir. 1993) Suggesting language to the witness that might aid the testimony, DC Opinion 79, p. 139 Suggesting substantive points to the witness, DC Opinion 79, p. 139 Conducting practice examination or cross-examination, DC Opinion 79, p. 140.» Small, Daniel L., Preparing Witnesses, A Practical Guide for Lawyers & Their Clients, American Bar Association Publication, 2004. 14
Ethical Challenges: Preparation vs Coaching In short, Both witness and the lawyer share a responsibility for ensuring the truth of the witness s testimony.» Small, Daniel L., Preparing Witnesses, A Practical Guide for Lawyers & Their Clients, American Bar Association Publication, 2004. 15
Ethical Challenges: Preparation vs Coaching Typical Preparation Questions: Can you show a witness a transcript of someone else s testimony? Can You Tell the Witness the Theory of the Case? Can you provide witnesses with a list of documents to review? Can you tell them a specific fact they didn t know before deposition? 16
Ethical Challenges: Preparation vs Coaching Can you show a witness a transcript of someone else s testimony? ti Short Answer: Yes, for depositions. Caution: other side will try to make it sound like you reviewed testimony to get stories straight. don t use the deposition testimony as a lazy way to prepare your witness. Best practice: don t show them the whole transcript; just review questions from prior deposition to prepare them for potential questions. Trial is a different story they may invoke the rule (sequestration/ exclusion of witnesses). Rule 615 of Federal Rules of Evidence 17
Ethical Challenges: Preparation vs Coaching Can You Tell the Witness the Theory of the Case/ Company s Legitimate, Nondiscriminatory Reason? Yes important for witness to understand big picture. Caution: Want them to articulate in their own words Same response for all witnesses make it look less credible. Learned from Ibarra case that term planting can be sanctionable. 18
Ethical Challenges: Preparation vs Coaching Can you provide witnesses with a list of documents to review? Yes, but question is whether the witness has to testify about it/ produce the list. Technically, witness has to produce what he/she used to prepare for deposition. Some jurisdictions take approach that if it isn t substantive information, it is attorney-client privileged/ attorney work product. If document refreshes recollection, it is fair game. Videos preparing witnesses are good. 19
Ethical Challenges: Preparation vs Coaching Can you tell them a specific fact they didn t know before deposition? Yes, but again, be careful you aren t planting memories. Need to make sure you re just generally informing them of background facts, not suggesting that t they need to testify to the fact. Watch for witness who says, I ll Ill say whatever you want me to say. 20
Ethical Challenges: Preparation vs Coaching Other Preparation Ethical Issues to think about: 30(b)(6) deposition? Different questions/ thoughts/ coaching Client or nonclient? Privilege or not? Prepping multiple witnesses together Other people in room 21
BEST ADVICE FOR ATTORNEYS PREPARING WITNESSES: The rule is, never try to teach a pig to sing. It doesn t work, and it annoys the hell out of the pig. (anonymous, but generally attributed to Mark Twain) 22
Ethical Challenges Clarifying Testimony Inaccuracies 23
Clarifying Testimony Inaccuracies Can you Tell Witness to Pay Attention? Can YOU ask for rephrasing? What if you know witness misspoke? Can you use Errata Sheets to Clarify? What objections can you make to clarify? 24
Ethical Challenges: Clarifying Testimony ABA Civil il Discovery Standards Rule 18 Conferring with the Witness An attorney should not initiate a private conference with the deponent during the deposition except to determine whether a privilege should be asserted or to enforce a court-ordered limitation on the scope of discovery. 25
Ethical Challenges: Clarifying Testimony Can you tell Witness to pay attention or don t speculate? Jurisdictional question check your jurisdiction. Generally, polite dialogue is okay unless it is clear you are suggesting answer to the witness. 26
Ethical Challenges: Clarifying Testimony Can you ask opposing counsel for rephrasing of question because you don t understand? d? May also be jurisdictional. Some jurisdictions say such an objection is improper. E.g., Phillips v. Manufacturers Hanover Trust Company, No. 92 Civ.8527, 1994 U.S. Dist. LEXIS 3748 (S.D.N.Y. March 29, 1994). Opposing Counsel may protest it doesn t matter if YOU understand only witness Response: I assumed if I didn t understand the question, they wouldn t either. Sincere questions may be fine - - just can t be suggesting answer to the witness (speaking objections). 27
Ethical Challenges: Clarifying Testimony What if you know your witness misspoke? Several options, depending on the witness, case, jurisdiction, and opposing counsel: 1) Speak up and tell attorney on the record you know that date, etc. are wrong and clarify. 2) Take a break and ask the witness if they misspoke. If they did, have them clarify the answer when they come back in. Be prepared to answer question of what happened at the break/ to address ethical/ coaching issues 3) Stay quiet, knowing that t the question isn t material and you don t want to taint the testimony 4) Ask follow up questions at the end of the deposition to clarify. 28
Ethical Challenges: Clarifying Testimony Can you Use Errata Sheets to Clarify? Sometimes Note New Massachusetts case May have to pay for costs of re-deposing Typically can use changes to impeach witness later See Arkansas Law Review Article (email tbult@constangy.com) 29
Ethical Challenges: Clarifying Testimony What objections can you make during deposition? Check out your jurisdiction some jurisdictions, you can only object as to form. ABA Civil Discovery Standards Rule 18 In objecting to or seeking to clarify a pending question, an attorney for a deponent should not include any comment that coaches the witness or suggests an answer. Typically y can also object as to lack of foundation (any objection which can be cured at deposition). Educate witness about listening to you objections. 30
Ethical Challenges: Use of Mistakenly Produced Info ABA Model Rule 4.4 (b): A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Duties seemingly conflict with duty to zealously represent client Outcome depends on state Courts generally determine if there was intention to waive attorney/client t privilege il or balancing between interests Some courts have gone so far as to say metadata can t be reviewed & used. 31
Ethical Challenges: Conferring with witness during recess Can you coach a witness during breaks at a deposition or trial? Trial it is clear you CANNOT talk to witness who is still on the stand during a break. Depositions less clear Most attorneys take position break conversations are attorney-client t privileged il One case: depositions are like trial, and once the deposition begins, there should be no further questions which could taint the testimony Reality: attorneys are loathe to call other attorneys out (turnabout is fair play?). 32
Ethical Challenges: Conferring with witness during recess What if another attorney has clearly coached a witness during a break? Point out on the record a break was taken and the testimony changed shortly after the break Ruins witness credibility if there isn t a good explanation Best practice: Stick to atta boy conversations during breaks Tell witnesses only what you would not mind them testifying to when they returned from break 33
Ethical Issues in Working with Experts 34
Ethical Issues in Working with Experts Resources: Downey, Michael, Ethical Issues Associated With Expert Witnesses, DRI Professionalism Perspectives, 2007, http://www.imakenews.com/ethics/e_article001006655.cfm?x=0,b11,w 35
Working with Experts Federal Rule of Evidence 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 36
Working with Experts General Rules for Experts from 702: FRE Rule 702 is broadly phrased -- includes experts such as physicians, physicists, architects, bankers, and landowners Different from lay witnesses - an expert may testify about subjects within their specialized knowledge in the form of an opinion or otherwise. There may also be consulting (nontestifying) experts. 37
Working with Experts (in plain English) Who's an Expert? Someone who knows something beyond common experience who can help you prove something you couldn't prove otherwise. When to Use an Expert? Should be involved in a case as early as possible: technical analysis, preparing for deposition, during discovery, analyzing documents in settlement and mediation discussions, and summing up complex facts for jurors. 38
Ethical Issues with Experts Issues with Experts: a) Paying for Expert Testimony b) Confidentiality, Privilege/ Work Product Issues c) Conflicts d) Competency Issues e) Coaching the Expert (or Expert Coaching Others) See Ethical Issues Associated With Expert Witnesses by Michael Downey, DRI Professionalism Perspectives, 2007, http://www.imakenews.com/ethics/e_article001006655.cfm?x=0,b11,w 39
Paying Ethical for Issues Expert with Experts Opinion or Paying for Expert Testimony Testimony Rule 3.4(b) of the Model Rules: a lawyer shall not "counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." Guidance states: [I]t is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. Rule 7-109(C) of the Model Code: A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: Expenses reasonably incurred by a witness in attending or testifying. Reasonable compensation to a witness for his loss of time in attending or testifying. A reasonable fee for the professional services of an expert witness 40
Paying Ethical for Issues Expert with Experts Opinion or Paying for Expert Testimony General Rules: Testimony Fee cannot be contingent upon outcome of case or court s acceptance as expert witness Expert is entitled to fair and reasonable compensation for providing expert testimony Should agree upon fee in advance Remember experts often will be asked at trial about Comp. Consider effect of question on jury. Even if you don't ask plaintiff's experts what they are being paid, they can ask yours. Consider a prior agreement on whether sides will raise. If you ask, often wise to focus on total compensation rather than an hourly rate. Have your experts bring their time records in case they need to refresh their memories. 41
Ethical Issues with Experts Confidentiality ABA Model Rule of Professional Conduct 1.6: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [certain other exceptions spelled out in ABA Model Rule 1.6](b). 42
Ethical Issues with Experts Confidentiality Improper Disclosure of Information to an Expert could: Result in disciplinary ethical violation Waive attorney-client privilege or attorney workproduct doctrine 43
Ethical Issues with Experts Confidentiality Attorney Work Product Waiver Depends on if Expert is testifying or consulting Consulting Expert: FRCP 26 a party must prove exceptional circumstances to obtain discovery Only Two Exceptions: 1) consulting expert reports on something lost & cannot be restored and duplicated; or 2) consulting expert prepares crucial basis for the testimony of a testifying expert. Testifying Expert: Generally Discoverable. FRCP 26(a)(2)(B) requires written report & basis for opinions, including data or other information considered by the witness in forming the opinions. 44
Ethical Issues with Experts Confidentiality Attorney Work Product Waiver Consulting Expert: FRCP 26 a party must prove exceptional circumstances to obtain discovery Only Two Exceptions: 1) consulting expert reports on something lost & cannot be restored and duplicated; or 2) consulting expert prepares crucial basis for the testimony of a testifying expert. Testifying Expert: Generally Discoverable. FRCP 26(a)(2)(B) requires written report & basis for opinions, including data or other information considered by the witness in forming the opinions. 45
Ethical Issues with Experts Confidentiality Attorney Client Privilege Waiver Testifying Expert Witness: Almost anything shared with testifying witness will waive privilege Consulting Expert Witness: Most communications will waive privilege EXCEPT if expert is necessary or highly useful to interpretation of communication E.g., accountant interpreting accounting concepts United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), 46
Ethical Issues with Experts CONFLICTS ISSUES Disqualification of Expert a drastic measure which courts should hesitate to impose except when absolutely necessary. Chamberlain Group v. Interlogix, Inc., No. 01 C 6157, 2002 WL 653893 (N.D. Ill. Apr. 19, 2002). Standards for disqualification of expert due to conflicts depends on circumstances: Commerce Industrial Insurance Co. v. E.I. DuPont de Nemours & Co. (In re Maldon Mills Indus., Inc.), ) 275 B.R. 670 (D. Mass. 2002). 47
Ethical Issues with Experts CONFLICTS ISSUES Standards for disqualification of expert: Disqualification based on expert switching sides. Objectively reasonable to believe confidential relationship existed? If so, was confidential information disclosed d to expert? Expert affiliated with expert for opposing party. Requires evidence that substantive information about case exchanged between affiliated experts. Necessary to preserve integrity of judicial system. Necessary to preserve integrity of judicial system. Infrequent, nebulous 48
Ethical Issues with Experts CONFLICT ISSUES Considered misconduct to hire another witness or expert just to create a conflict with the expert (witness tampering) 49
Ethical Issues with Experts COMPETENCY ISSUES Lawyers are responsible for ensuring expert is testifying truthfully & reasonably Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005) Court felt doctors created an phantom epidemic for lawsuit unreported to governmental agencies 50
Ethical Challenges in Witness Prep: Case Examples 51
Moussaoui Trial March 2006, attorney Carla Martin sanctioned in Virginia for providing copies of trial transcript to pending witnesses in al-qaeda conspirator Zacarias Moussaoui. Court said violation of ethics rule and explicit court order. Transcript of Evidentiary Hearing Before the Honorable Leonie M. Brinkema, U.S. District Court Judge, United States v. Zacarias Moussaoui, No. 01-455 (E.D. Va. Mar. 14, 2006), at *217-18. 18. 52
Trial of Senator Ted Stevens Judge kicked attorney Bob Bundy out of courtroom for nodding his head at his client during criminal trial of Senator Ted Stevens (for improperly accepting $250,000 in gifts and home renovations). http://www.law.com/jsp/nlj/pubarticlenlj.jsp?id=120244 7348097&slreturn=1&hbxlogin=1 53
Ibarra - Coaching the Expert Ibarra v. Baker, 338 Fed.Appx. 457 (5th Cir. 2009). Court considered how far is too far when it comes to witness coaching District court ordered sanctions and found attorneys planted two new terms of art into the litigation via deposition testimony retaliation and high crime area. On appeal, court found the evidence was a bit scant, but upheld lower court decision. i 54
Ibarra - Coaching the Expert Ibarra v. Baker Note one issue in case: the way the court found out about the conduct is because the attorneys didn t do the prep themselves they had expert witnesses speak with other officers Leads to (perhaps wrong) lesson just don t get caught/ privilege will protect most improper coaching? 55
In-House Considerations 56
In House Considerations As In House Counsel viewing the big picture, always think about level of employee you are preparing. Manager probably a client. Hourly employee or supervisors have to consider context. UpJohn Co. v. United States, 449 U.S. 383 (1981) Rejected control group test for determining attorney-client privilege for corporate employees. in the corporate context, it will frequently be employees beyond the control group... who will possess the information needed by the corporation's lawyers. Middle-level -- and indeed lower-level -- employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Attorney-client privilege/work doctrine appears to apply if the advice concerns matters within the scope of the employees' corporate duties, and employees themselves are sufficiently aware that they [are] being questioned in order that t the corporation [can] obtain legal l advice. 57
In-House Considerations As In-House Counsel, have to consider the need to be involved in Witness Preparation. Will your presence help or hurt the process? Be strategic with your outside counsel Will it be helpful for you to see witness demeanor to better assess the case? 58
In-House Considerations If involved in preparation, think about the person involved: High-level managers are sometimes the most difficult to prepare Won t take the time to prepare Think they know everything (or can/ should be able to answer any question) Think they can outsmart the other side May need General Counsel or other high-level manager present in deposition prep to ensure they understand obligations 59
In-House Considerations As In-House Counsel, have to consider the need to be at Deposition. Could your presence help the witness be at ease and feel supported? Is it a high-level witness who you might need to control? Is it best for you to see the witness up close and personal? What is your interference threshold? (can you sit still?) 60
QUESTIONS? 61
Ethical Challenges in Preparing Witnesses and Working with Experts: Best Practices to Avoid Unethical Coaching of Lay and Expert Witnesses Teresa Rider Bult Constangy, Brooks & Smith, LLP Nashville, Tennessee www.constangy.com tbult@constangy.com Lucia E. Coyoca Mitchell, Silberberg & Knupp, LLP Los Angeles, CA www.msk.com lec@msk.com 62