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Woodshedding in theTwenty-First Century

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Module # 2 Civil Trial
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Woodshedding in theTwenty-First Century

  1. 1. John P. Kelly Fort Lauderdale, Florida
  2. 2.  Fundamental human problem of recalling events from the past; no one has accurate ―instant recall‖;  Frailties in human perception;  Help the witness tell the story that you are trying to put together for trial by fitting his or her testimony into the story line that is best for your client;  Build the confidence of the witness;  Improve the credibility of the witness;  Avoid ―traps‖ in opposing counsel’s cross-examination, i.e., ―tricky questions‖
  3. 3.  Polished witnesses speed up the process;  Comfort witnesses to an uncomfortable process;  Polished witnesses are unlikely to fumble on the stand;  Smoother trial and less work for the judge
  4. 4.  Breath and scope of questioning at depositions  Wide-open discovery  Up to 98% of cases settle  No judge present
  5. 5.  : ― … attorneys are well-advised to heed the sage advice . . .[to] ―exercise the utmost care to extract and not to inject information, . . .‖ State v. Earp, 571 A.2d 1227,1234 (Md. 1990)
  6. 6. ZEALOUS REPRESENTATION VS. CANDOR TO THE COURT  Lawyer’s duty to zealously represent a client  Model Rules of Professional Conduct 1.3-‖a lawyer should act with ―reasonable diligence‖ in representing a client  MR 1.29(d) a ―lawyer shall not counsel a client to engage, or assists a client, in conduct that the lawyer knows is criminal or fraudulent‖  MR 3.4 (b):a lawyer shall not . . assist a witness to testify falsely  MCPR: lawyer cannot participate in the creation or preservation of evidence when he knows, or is obvious, that the evidence is false
  7. 7.  Witness Preparation has been called the ―Dark Secret‖ of the legal profession:  Not taught in law school;  Not directly regulated or directly covered in most Professional Codes;  Rarely litigated and scant case law on the subject;  Not a huge topic in scholarly literature;  Only exception is subornation of perjury, which is a criminal violation.
  8. 8.  18 USC § 1622, defines Subornation of Perjury as a crime wherein: ―Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined $2,000 and sentenced to up to five years. Subornation of perjury occurs when anyone — not just a lawyer — encourages a witness to perjure her/himself. Violators can face a maximum of five years in prison.‖  Moreover, an attorney who actively encourages a witness to give false testimony is suborning perjury, which is a crime punished with formal disciplinary action, disbarment, or jail.  Hence, in the professional conduct of an attorney at law, there is a fine delineation between assisting a witness to recall occurred events and encouraging him or her to give materially false testimony.
  9. 9.  The Model Rules of Professional Conduct, Rule 3.4(b) states that a lawyer must not counsel or assist a witness to testify falsely. Many courts also impose a knowledge requirement. Restatement of the Law Third, The Law Governing Lawyers ' 120(1) (lawyer may not A knowingly counsel or assist a witness to testify falsely as to material issue of fact). Under the MRPC Terminology section, A knowledge means A actual knowledge, but such knowledge may be inferred from circumstances.  The MRPC’s definition of A knowledge" suggests that a lawyer may be found to have the requisite state of mind under MRPC 3.4(b) when the evidence shows the lawyer actually knew or must have known that his witness preparation would assist a witness in testifying falsely.
  10. 10. The term "woodshedding" refers to impermissibly coaching a witness or unfairly prejudicing a witness during ex parte communications. In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices and Products Liability Litig., 2011 U.S. Dist. LEXIS 21973 (D. Ill. 2011).
  11. 11. Georgetown Legal Ethics Professor David Luban has observed: "The interviewing and preparation of witnesses ... is a practice that, more than almost anything else gives trial lawyers their reputation as purveyors of falsehoods."
  12. 12.  Rule 4-3.4 : ―A lawyer shall not‖: unlawfully obstruct another party’s access to evidence; . . . fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness; . . . request a party to refrain from voluntarily giving relevant evidence to another party unless a client, relative, employee, or other agent of client
  13. 13.  In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client. Preparation consistent with the rule of this Section may include the following: discussing the role of the witness and effective courtroom demeanor; discussing the witness’s recollection and probable testimony; revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s 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 witness’s 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. A lawyer may suggest choice of words that might be employed to make the witness’s meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact
  14. 14.  Some courts suggest that improper witness coaching is not of great concern because it can be flushed out by cross-examination.  What if witness denies being woodshedded or gives a response, ―I was told to tell the truth‖  What if attorneys’ ―suggestions‖ have been unfairly and permanently planted in the memory of the witness
  15. 15.  ―If you tell the truth, you have nothing to fear and the other side will not be able to shake you. I am hear to help you tell the truth confidently and clearly.‖
  16. 16.  ―He told me to tell the truth, and ….. get a good night’s sleep‖
  17. 17.  In Ibarra v. Baker, 338 Fed Appx. 457 (2009), the Fifth Circuit Court of Appeals considered the issue of how far is too far when it comes to overly woodshedding witnesses.  The court upheld an award of sanctions against attorneys representing law enforcement officers in a Section 1983 action, where the defense asserted it had a reasonable suspicion for detainment of the plaintiff. The lower court had found the attorneys improperly instructed their expert witness, Albert Rodriguez, a commander with the Texas Department of Safety, to improperly alter the law officers’ substantive testimony. The district court found the attorneys had essentially planted two new ―terms of art‖ into the litigation via their preparation of Rodriguez: ―retaliation‖ and ―high crime area.‖ The witnesses all began using these terms as part of their testimony late in the litigation, after the attorneys met with Rodriguez and subsequently with the other officers.
  18. 18.  Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010): attorney’s alleged statements to potential witnesses, before their appearance at deposition or in the courtroom in underlying action, were covered by the absolute immunity conferred by the litigation privilege.  Dissent: ―An attorney has absolute immunity for events occurring during a judicial proceeding. However, where, as it is alleged here, an attorney makes defamatory statements which injure a person outside of those ―judicial proceedings,‖ the attorney should be entitled only to qualified immunity.‖
  19. 19.  Simultaneous Interviews: simultaneous interviews of potential witnesses do not violate any rule of professional responsibility, but as a practical matter they should be avoided because it reinforces the appearance of collusion.  One witness’s recollection may be suppressed by proposed testimony of that recollection by another witness.
  20. 20. One of the oldest witness preparation practices is called the lecture. While frequently used in connection with the initial interview of a criminal defendant-client, it is also sometimes used when interviewing witnesses. As practiced, before hearing the client or witness’s version of what occurred, the lawyer explains the law relating to the charged offense or the law relating to a possible defense and frequently the law relating to both and then asks the client or witness to tell him her version of the events. The lecture is frequently criticized by legal academics as violating Model Rule of Professional Conduct 3.4(b) which prohibits a lawyer from falsifying evidence or counseling or assisting a witness to testify falsely or at least as bordering on such a violation because, it is argued, it encourages a defendant or witness to falsely tailor her testimony to the applicable law. Despite those criticisms, the practice of explaining the law before hearing the client or witness’s version of the events has been approved by courts and ethics committees of bar associations.
  21. 21.  The “Lecture" is an a tried and true device that lawyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching.
  22. 22. The Lecture as practiced usually involves three elements: the law, the words, the focus. 1. The Law. As a general rule, lawyers are permitted to tell witnesses about the applicable law and necessary proof. Restatement of the Law Third, The Law Governing Lawyers ' 116, Comment b; State v McCormick, 259 SE 2d 880 (NC Sup.Ct. 1979); Nassau County (N.Y.) Ethics Opinion 94-6 (1994) (lawyer may inform client about law before getting client’s version of facts as long as lawyer in good faith does not believe that he or she is participating in creation of false evidence). 2. The Words. "A lawyer may suggest choice of words that might be employed to make the witness' meaning clear." This is permissible, so long as the substance of the ultimate testimony, as far as the lawyer knows or ought to know, remains truthful and is not misleading. See District of Columbia Ethics Op. 79 (1979). 3. The Subjects of Focus. A lawyer probably can suggest subject matters to focus on in responding to questions at a deposition or trial. See EEOC v. Mitsubishi Motor Mtg. of America, Inc., No. 96-1192 (D.C Ill. Oct. 23, 1997). The judge characterized as "somewhat disingenuous" the contention that the EEOC's letter to its witnesses with “memory joggers" of items to recall in testimony would taint the truth-finding process..
  23. 23.  Scripted performances based on Q&A  ―Oh, I left my questions and answers in my car‖
  24. 24.  Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995):  Grade One Coaching: knowingly and overtly coaching a witness to testify to something the lawyer knows is false  Grade Two Coaching: Sending a witness a masked message between the lines;  Grade Three Coaching (OK): know knowing inducement , but the coaching nonetheless alters the witness’s story
  25. 25.  Goldman and Winegardners, 59 Cath U.L. Rev. 1 (2009)  Lawyer must distinguish sharply between testimony that is inaccurate because of human error and testimony that is inaccurate as a result of lawyer deception  Distinction between ―testimony about historical record‖ and ―testimony about present understandings‖  ―a lawyer may not deceptively offer or permit a witness to offer inaccurate testimony to improve the record to benefit the client‖
  26. 26. Multi-cultural and politically divisive Less verbally articulate Multimedia Influence More prone to confabulated memories
  27. 27.  In protracted litigation, ‖confabulated memory‖ – filling in the blanks and recreating memories – is common, and research has documented the tendency.  Confabulation is defined as the spontaneous production of false memories: either memories for events which never occurred, or memories of actual events which are displaced in space or time. Confusion of imagination with recollection  Repetitive suggestive questioning tends to plant the seeds of memory.  What is more problematic is that it is possible to reach a point where ―if you believe it, then it isn’t a lie.‖
  28. 28.  Behavioral Psychologists say report that the quality of witness testimony, whether it is from a fact witness or expert witness, is probably the single most determining factor in a trial's outcome, particularly in complex litigation. This is because as basic facts of a trial get more complex, jurors memories are more impacted by how a witness performed on the stand rather than the content.  Stated another way, jurors are often more persuaded by form than substance, which is hardly an unusual phenomenon and is seen in many other decision-making fields—indeed that is a central tenet of marketing and political campaigns
  29. 29.  Research evidence has uniformly shown that perception of a witness influences jurors’ beliefs about the witnesses accuracy and honesty.  People regard as persuasive those communicators who are: 1. Extroverted, 2. Involved, 3. Positive 4. Moderately Relaxed. Good witnesses tend to use a 1. Great deal of eye contact, 2. Speak in clear steady tones and 3. Appear confident
  30. 30.  Eye Contact  Positive appearance  Extroverted mannerisms  Moderately Relaxed  Speak in clear and steady tones
  31. 31.  Prior witnesses’ testimony on Ipad;  Use of behavioral consultants to ―train’ the witness;  Showing the witness a ―how to be a great witness video demonstration‖;
  32. 32.  Telling the witness to make sure she takes her valium or xanax, or perhaps an extra dose;  Telling the witness to have a yoga or mediation session before coming to court;  Scripted dry-runs or rehearsals with instant ―live‖ feedback;  Telling the witness exactly what to wear or to alter his or her appearance;  Use of actors to read depositions
  33. 33. Get a haircut and go to the dentist How about a pair of fake glasses? I know a great tailor By any chance, will you be out of the country when this case goes to trial?
  34. 34. ?????????
  35. 35. LAWYER WITNESS

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