The Ethics and The Ethics and Tactics of Tactics of

Witness/Client Witness/Client Preparation for Preparation for

Trial Trial

Roberta K. Flowers Roberta K. Flowers Stetson University College of LawStetson University College of Law

Goals of this sessionGoals of this session

Consider the practical issues in Consider the practical issues in preparing clients and witnesses to preparing clients and witnesses to appear in courtappear in court

Discuss the ethical issues of Discuss the ethical issues of witness/client preparation.witness/client preparation.

Explore the tactical issues to consider Explore the tactical issues to consider when discussing trial or courtroom when discussing trial or courtroom proceedings.proceedings.

Video clipVideo clip

Witness preparation.Witness preparation.

Civil case—trial.Civil case—trial.

Mrs. Carpenter sued her former Mrs. Carpenter sued her former financial advisor who embezzled a financial advisor who embezzled a substantial amount of money.substantial amount of money.

Preparing a witness for courtPreparing a witness for court

Model Rule 1.1—Competent Model Rule 1.1—Competent representationrepresentation

Model Rule 1.4 – CommunicationModel Rule 1.4 – Communication Legal knowledgeLegal knowledge SkillSkill ThoroughnessThoroughness PreparationPreparation

Witness preparation is the Witness preparation is the fundamental duty of fundamental duty of

representation and a basic representation and a basic element of effective element of effective

advocacyadvocacy

Preparing the client/witness for Preparing the client/witness for courtcourt

FacilitiesFacilities

Individual needsIndividual needs

ProceduresProcedures

Considerations with use of animals Considerations with use of animals in the courtroomin the courtroom

Model Rule 3.4(e)– eluding to inadmissible issuesModel Rule 3.4(e)– eluding to inadmissible issues

Model Rule 4.4—Respect for rights of othersModel Rule 4.4—Respect for rights of others No substantial purpose other then to embarrass, delay No substantial purpose other then to embarrass, delay

or burden third party.or burden third party.

Model Rule 8.4 – Engage in conduct that is Model Rule 8.4 – Engage in conduct that is prejudicial to the administration of justice.prejudicial to the administration of justice.

Florida Rule 4-8.4 (d) including to knowingly or through Florida Rule 4-8.4 (d) including to knowingly or through callous indifference disparage, humiliate, or callous indifference disparage, humiliate, or discriminate against litigants, jurors, witnesses, court discriminate against litigants, jurors, witnesses, court personnel other lawyers on the basis of … physical personnel other lawyers on the basis of … physical characteristics. characteristics.

What should the lawyer have What should the lawyer have covered better?covered better?

Witness PreparationWitness PreparationInformation GatheringInformation Gathering

To investigate the factsTo investigate the facts To find out what this victim knows To find out what this victim knows

and what they can testify to from and what they can testify to from personal knowledgepersonal knowledge

To determine how accurately the To determine how accurately the witness perceived the event and witness perceived the event and what conditions may have hindered what conditions may have hindered or assisted his/her perceptionor assisted his/her perception

Witness PreparationWitness PreparationPurposesPurposes

To test the witnesses memoryTo test the witnesses memory To discover how certain the witness To discover how certain the witness

is about what he remembersis about what he remembers To determine adverse or favorable To determine adverse or favorable

conditions that may have affected conditions that may have affected the witness’s memory.the witness’s memory.

Witness PreparationWitness PreparationMemory IssuesMemory Issues

To refresh the witness memory about facts To refresh the witness memory about facts he may have known but forgottenhe may have known but forgotten

To find out what documents or other To find out what documents or other tangible evidence or non-evidentiary tangible evidence or non-evidentiary stimulus will help refresh the witness stimulus will help refresh the witness memorymemory

To test the witness’s ability to To test the witness’s ability to communicate his recollection communicate his recollection

To find out what the witness means by To find out what the witness means by words or expressions used in his storywords or expressions used in his story

Witness PreparationWitness PreparationCredibilityCredibility

To test the witness’s truthfulnessTo test the witness’s truthfulness To warn the witness that his credibility To warn the witness that his credibility

may be attacked and that his past acts may be attacked and that his past acts may be exposed in open courtmay be exposed in open court

To ascertain if the witness has a good To ascertain if the witness has a good or bad character for truthfulnessor bad character for truthfulness

To find out if the witness has To find out if the witness has previously been convicted of a crime previously been convicted of a crime that could be used to impeach his that could be used to impeach his credibilitycredibility

Witness PreparationWitness PreparationCredibilityCredibility

To uncover instances of non-criminal To uncover instances of non-criminal conduct that could be used to impeach the conduct that could be used to impeach the witness’s credibilitywitness’s credibility

To discover whether the witness’s story To discover whether the witness’s story has been influenced by bias or prejudicehas been influenced by bias or prejudice

To discover whether the witness’s story To discover whether the witness’s story has been influenced properly or has been influenced properly or improperly by the statements or conduct improperly by the statements or conduct of other people.of other people.

To find out if the witness has made To find out if the witness has made statements that are either consistent or statements that are either consistent or inconsistent with his present story.inconsistent with his present story.

Witness PreparationWitness PreparationPersuasivenessPersuasiveness

To test the witness’s demeanor in To test the witness’s demeanor in response to certain stimuli he may response to certain stimuli he may encounter when he is testifyingencounter when he is testifying Harsh cross examinationHarsh cross examination ConfusionConfusion The DefendantThe Defendant

Witness Preparation Witness Preparation Inform the WitnessInform the Witness

To explain to the witness why he should To explain to the witness why he should listen to questions carefullylisten to questions carefully not guessnot guess not volunteer information that has not been not volunteer information that has not been

asked forasked for be alert to objectionsbe alert to objections

Advise the witness of appropriate attire and Advise the witness of appropriate attire and physical appearancephysical appearance distracting mannerismsdistracting mannerisms inappropriate language and demeanorinappropriate language and demeanor effective delivery of testimonyeffective delivery of testimony

Witness Preparation Witness Preparation Inform the WitnessInform the Witness

To explain the role of the witness, To explain the role of the witness, the obligation imposed by the oath the obligation imposed by the oath and the formality of the court and the formality of the court proceedingsproceedings

To inform the witness about the To inform the witness about the physical surroundings in which he physical surroundings in which he will testify, the persons who will be will testify, the persons who will be present, and the logistics of being a present, and the logistics of being a witnesswitness

If I only have a limited amount of If I only have a limited amount of time what is the most important time what is the most important task to accomplish in a witness task to accomplish in a witness

preparation meeting?preparation meeting?A. Make the witness comfortableA. Make the witness comfortable

B. Review the Witness’ storyB. Review the Witness’ story

C. Inform the witness about the C. Inform the witness about the proceedingsproceedings

D. Discuss the cross examination and D. Discuss the cross examination and weakness in the case.weakness in the case.

When should witness preparation When should witness preparation occuroccur

A. Day of trialA. Day of trial

B. A few days before trialB. A few days before trial

C. During the course of the caseC. During the course of the case

D. All of the AboveD. All of the Above

Parts of Witness PreparationParts of Witness Preparation

Initial intakeInitial intake

Prior to Depositions/pretrial motionsPrior to Depositions/pretrial motions

Final Preparation before TrialFinal Preparation before Trial

Initial Intake/Client interviewInitial Intake/Client interview

Fact gatheringFact gathering

Memory issuesMemory issues

Credibility issuesCredibility issues

Prior to Deposition/HearingPrior to Deposition/Hearing

Explain purpose and logistical details Explain purpose and logistical details of proceedingof proceeding

Memory issuesMemory issues

Review testimonyReview testimony

Final preparationFinal preparation

Giving informationGiving information General informationGeneral information Case Specific informationCase Specific information

Testimony preparationTestimony preparation Review reports, statements, depositionsReview reports, statements, depositions Direct examinationDirect examination Cross examination Cross examination

““the real goal of witness preparation should the real goal of witness preparation should be viewed not only as protection of the be viewed not only as protection of the witness but as destruction of the opponent’s witness but as destruction of the opponent’s cross-examination.cross-examination.

The amount and type of witness The amount and type of witness preparation depends on who the preparation depends on who the

witness is?witness is?

A.A. False False

B.B. TrueTrue

Structure of final witness Structure of final witness preparationpreparation

Warm up Warm up Witnesses greatest weapon is to tell Witnesses greatest weapon is to tell

the truththe truth General information about the General information about the

proceedingproceeding PurposePurpose Time, location, directions, where will I Time, location, directions, where will I

meet youmeet you What you should wearWhat you should wear Tour of the courtroomTour of the courtroom

Structure of the final witness Structure of the final witness preparationpreparation

General information about testifyingGeneral information about testifying Demeanor/Looking like they are telling Demeanor/Looking like they are telling

the truth.the truth. Refreshing recollectionRefreshing recollection ListeningListening Answering only question askedAnswering only question asked Looking at juryLooking at jury Use lay people languageUse lay people language

Structure of Final Witness Structure of Final Witness PreparationPreparation

General informationGeneral information Cross examinationCross examination

Tell the truthTell the truth Think before you speakThink before you speak Stay calmStay calm Don’t try to our smart the attorneyDon’t try to our smart the attorney Don’t use sarcasmDon’t use sarcasm What to say if defense attorney asks if you What to say if defense attorney asks if you

talked about your testimonytalked about your testimony

Structure of the Final Witness Structure of the Final Witness Preparation Preparation

Review of testimonyReview of testimony Witness review statement before beginWitness review statement before begin Question/AnswerQuestion/Answer

ProsPros ConsCons

General structure of the examinationGeneral structure of the examination Key pointsKey points Opening statementOpening statement

Structure of the final witness Structure of the final witness preparationpreparation

Wrap up Wrap up Remind of time and placeRemind of time and place Tell the truth Tell the truth QuestionsQuestions Upbeat Upbeat

““Witness preparation requires Witness preparation requires careful thought, genuine finesse careful thought, genuine finesse

and close attention to the and close attention to the highest standards of highest standards of

professional conduct” professional conduct”

Witness PreparationWitness PreparationRules of Professional ConductRules of Professional Conduct

3.3(a)(4)3.3(a)(4)Offer evidence the lawyer Offer evidence the lawyer knows to be false.knows to be false.

3.4(b)3.4(b) Falsify evidence, Falsify evidence, counsel counsel or assist a witness or assist a witness to testify to testify falsely.falsely.

8.4(c)8.4(c) Engage in conduct Engage in conduct involving dishonesty, involving dishonesty,

fraud, fraud, deceit, deceit, misrepresentation.misrepresentation.

Preparing vs. CoachingPreparing vs. Coaching

Prepare the witness to give “the Prepare the witness to give “the witness’s testimony at trial not the witness’s testimony at trial not the testimony that the attorney has testimony that the attorney has placed in the witness’ mouth.”placed in the witness’ mouth.”

““To extract the facts from the To extract the facts from the witness, not pour them into him; to witness, not pour them into him; to learn what the witness does know not learn what the witness does know not to teach him what he ought to know.”to teach him what he ought to know.”

Mr. Gregory is arguing that he explained the power Mr. Gregory is arguing that he explained the power of attorney fully to Mrs. Carpenter before she of attorney fully to Mrs. Carpenter before she

signed it. Your theory is that he told her that the signed it. Your theory is that he told her that the power of attorney only allowed him to reinvest the power of attorney only allowed him to reinvest the stocks not sell them. Which of the following would stocks not sell them. Which of the following would you tell Mrs. Carpenter about the law and defense you tell Mrs. Carpenter about the law and defense

theory:theory:

A. Nothing I would just ask her what he told A. Nothing I would just ask her what he told her.her.

B. I would first explain the purpose of a B. I would first explain the purpose of a power of attorney and that it is important to power of attorney and that it is important to the case that Mr. Gregory did not explain the case that Mr. Gregory did not explain that to her, then ask her what he told her that to her, then ask her what he told her

C. I would first explain that it is important C. I would first explain that it is important that Mr. Gregory lied to her about the that Mr. Gregory lied to her about the power attorney, and then ask her what he power attorney, and then ask her what he told her.told her.

D. Nothing, I would just ask her if he D. Nothing, I would just ask her if he explained that a power of attorney would explained that a power of attorney would allow him to sell all of her stocks.allow him to sell all of her stocks.

Tactics of witness preparationTactics of witness preparation

Too rehearsedToo rehearsed

Affecting credibility issuesAffecting credibility issues

““The moral fabric of an attorney The moral fabric of an attorney is stitchedis stitched out of the dozens -- out of the dozens -- hundreds -- of decisions that hundreds -- of decisions that she makes each day. It is she makes each day. It is stitched out of the tone of voice stitched out of the tone of voice she uses in talking to others, she uses in talking to others, out of her choice of adjectives out of her choice of adjectives while writing a letter, out of the while writing a letter, out of the care she takes in describing care she takes in describing what she represents as the what she represents as the truth of the matter. truth of the matter.

It is stitched out of one decision It is stitched out of one decision after another, each of which is after another, each of which is

mundane in itself, but all of which mundane in itself, but all of which combine to form the moral fabric combine to form the moral fabric of the attorney, and combine with of the attorney, and combine with like decisions of other attorneys like decisions of other attorneys to form the moral fabric of law to form the moral fabric of law firms and legal communities.” firms and legal communities.”

A Search for TruthA Search for Truth

The advocate’s roleThe advocate’s role