May 5, 2020

Podcast: Witness Preparation is Okay

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Witness Preparation is Okay," litigation attorney Dan Small shares how to overcome the misconception that preparing for trial is cheating the system. He outlines four issues that counsel needs to address with a witness to make them feel more comfortable about the preparation process: 1) preparation is normal and proper, 2) lawyers just want the truth, 3) be ready for questions about preparation and 4) explain privilege issues. Because privilege issues can confuse even experienced attorneys, Mr. Small takes a deeper look two court cases that clarified the scope of work product protection and sought to resolve tension with the Federal Rules of Evidence.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: Just settling into the witness preparation session, and your client nervously asks, "What if they ask about preparation?" It's a frequent question and concern from witnesses. Contained within it are all the common stereotypes about dishonest lawyers improperly coaching witnesses and telling them to lie. Counsel needs to respond to these concerns whether or not the witness is bold enough or honest enough to raise them. There are four key parts to the answer.

It's OK to Prepare

Number one, preparation is OK. Despite whatever suspicious tone a questioner may use to raise the issue, witness preparation is normal and proper. Being a witness is a difficult and unnatural process. We would not be doing our job as lawyers if we did not fully prepare a witness. By the way, the questioner knows this — he prepares his witnesses, too. According to the District of Columbia Bar, in Ethics Opinion number 79 from 1979, "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.

We Just Want the Truth

Number two, all we want is the truth. Many witnesses don't know this or don't believe it, so you have to tell them. Tell them that all we want is the truth. Therefore, so much of the preparation will just be asking you questions to make sure that we know as much as we can. I may be able to help you understand and adjust to the bizarre language and rhythm of the witness environment, but if I ever say anything that isn't 100 percent accurate, please stop and correct me. It doesn't help me, or you, for me to go forward with any misunderstandings about the case. Be sure to communicate this with the witness early and often.

Be Ready for Questions About Preparation

Number three, prepare for questions about preparation. Many questioners will ask questions about the preparation. That's OK. They're hoping to catch the witness by surprise so you feel bad or say something bad about the process. Don't fall for it. You can answer questions regarding the logistics of preparation: who, when, where. However, if you have an attorney-client relationship with the preparer, that's all, it stops there. Once the conference room or office door closes, these are privileged communications, and no one can ask you about them.

Privilege Issues

Number four, explain the privilege issues. Privilege issues can get confusing even for lawyers. Don't assume that your witness understands. The privilege may include oral communication, whether in person or on the phone; written communications, whether by letter or email or text or witness preparation memo; and work product in many forms. One important example worth explaining is the selection and compilation doctrine. In a recent case, there were over 50,000 documents, not that many in this era of emails and texts. We'd gone through the documents and pulled out a much smaller number, about 50 that we felt were important to discuss with the witness in preparation. In the deposition, the questioner started asking about the logistics of preparation, and then she asked, "What documents did you review with your lawyer?" I objected and instructed the witness not to answer on grounds of privilege. One of the other lawyers in the room was outraged, "That's not privileged, it's just documents." Sorry, but that's wrong.

Judicial Rulings on Privilege

The federal courts have extended the work product protections through the selection and compilation doctrine to encompass attorney compilations on the basis that the process of selecting and compiling documents is itself often demonstrative of the attorney's mental impressions and legal theories regarding how the documents relate to the issues in question. In Sporck v. Peil, 759 F.2nd 312, an attorney in a securities fraud case prepared a defendant for deposition by selecting a specific subgroup of documents from a larger body of documents and reviewing that subgroup with the defendant. At the deposition opposing counsel asked the defendant which documents he had reviewed, and the defendant refused to answer. The Third Circuit upheld the defendant's refusal to answer, holding that the selection and compilation of documents used to prepare a client for a deposition is protected by the work product doctrine. Indeed, the court stated, "In selecting and ordering a few documents out of thousands, counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, the process of distillation is often more critical than pure legal research." Similarly, in Shelton v. American Motors, 805 F.2nd 1323, an in-house counsel refused to respond to questions concerning the existence and nonexistence of various documents. The Eighth Circuit held that refusal was proper because the answer to the question would reveal the attorney's legal theories and thought processes. In particular, her ability to remember specific documents from a large number of documents would reveal her familiarity with those documents and her potential reliance on them to develop her client's case. Nevertheless, attorneys seeking to protect their selections must reconcile the tension that exists between the selection and compilation doctrine and the Federal Rules of Evidence, particularly Rule 612. The court in Sporck established three requirements for the applicability of Rule 612.

  • Number one, the witness must use the writing to refresh his memory. But being a witness is not like a high school quiz on how much you remember. Remember my podcast on rule six? If you don't remember, say so. "Madam Witness, we are not showing you documents to refresh your memory, your memory is fine as it is. The documents are just to help us more fully discuss the issues."
  • Number two, the witness must use the writing for the purpose of testifying. But no witness should rely on his memory of a document he saw in preparation. Remember the three-step protocol we discussed in the podcast covering rule number nine? Be careful with documents. Step one was, if you're asked a question, the answer to which is contained in the document, ask to see the document. Don't get into a debate with a document that's not in front of you, and don't rely on your memory of seeing the document in preparation.
  • Number three, the court must determine that production is necessary in the interests of justice. The witness needs to understand, assuming that it's correct, that the documents we're reviewing are not some secret bad stuff. They are all documents that either came from one or more of the parties, or have been or will be provided to one or more of the parties. The key here is that we had to use our time and legal knowledge and experience to review them and pull out what we felt was important to discuss with you. Otherwise, it would have been crazy and counterproductive to try to go through all the thousands of documents with you.

So there it is, preparation is not coaching, or rehearsing, or scripting or any of the different ways people try to twist it. It's a common and legitimate part of the litigation process. At both the beginning and the end of your preparation session, remind your witness that it's OK to admit to preparing if they're asked. But the details of the preparation are likely covered by privilege. Who, when, where is fine, but it ends there.

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