May 19, 2022

Podcast - The Extreme Case

Ethical Witness Preparation Series

In the first episode of his "Ethical Witness Preparation" podcast series, "The Ethical Witness: The Extreme Case," litigation attorney Dan Small begins a five-part series addressing the main ethical issues that arise in witness preparation. Mr. Small opens with a look at the extreme case of perjured testimony. He uses a real-life example from a divorce trial to show why witness preparation can be so difficult to do both effectively and ethically, especially under the pressures of a trial. He also points out that the truth may not always present itself, but there are better ways to communicate with clients to get them to say the right thing.

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Podcast Transcript

Dan Small: There are few areas in law that present as many ethical challenges as witness preparation. On the one hand, a lawyer has a duty to prepare a witness and the witness needs our help. On the other hand, witness preparation is very difficult to do both ethically and effectively. In this five-part series, we will address some of the main ethical issues that arise in witness preparation. We will cover the extreme case of perjured testimony, the four horsemen of the lying witness apocalypse, the Massachusetts example of approaching perjured testimony, preparation versus improper coaching and ethical conduct in the deposition room.

The Extreme Case of Perjured Testimony

Let’s start with the extreme case of perjured testimony. As the Supreme Court stated long ago, "All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth." For counsel, the dilemma arises when this search for truth conflicts with dual obligations to represent our client zealously while carefully protecting the attorney-client privilege.

There Is No Easy Way Out

Consider the case of In Re Attorney Discipline Matter, 98 F.3d 1082 (8th Circuit, 1996). The basic facts are simple, a divorce trial is underway, and the custody of the young daughter is at issue. The husband's lawyer calls a surprise witness, a man who testifies he had an affair with the wife. He says they met at a local motel and sometimes, when the wife was unable or unwilling to find a babysitter, she brought the 18-month-old to the motel with her. He says she would place the child on one bed while they were intimate on the other bed. Worse still, if the child became fussy, he said they would give her a bottle of beer to keep her occupied. The testimony concludes, a recess is called, and the wife's lawyer is left wondering where the truck came from that just ran over his carefully prepared case. How would he react to such devastating testimony? How would you react? The court reporter had a tape recorder that was accidentally left running during the recess. Alone in the courtroom, the wife and lawyer have this exchange:

Attorney: What about the business about the motel? Did that happen?

Client: Yeah, it happened.

Attorney: You better deny this. Eighteen months old, Jesus. You better deny this.

Client: What can I do with it that won't make it seem like I'm lying?

Attorney: If you said it didn't happen, it didn't happen.

Having heard his client clearly admit that the testimony was true, after the recess the lawyer calls her to the stand. With great outrage, he asks:

Attorney: Under oath now, do you ever remember going to a motel with your daughter?

Client: No.

Attorney: That's a lie, isn't it?

Client: Yes.

The tape recording eventually came out, the lawyer was disbarred and the Eighth Circuit upheld his disbarment.

Help the Client Understand

It would be tempting to dismiss this case as too extreme, but that would be wrong. First, under the great pressures of a trial, we hope that we would all be angels and do the right thing. But most of us are humans, not angels, and can understand the shock that lawyer must have felt along with the temptation to just make it go away. Second, we have to understand that we all tell clients to lie in ways far more subtle than "you better deny this, you better deny this." How? By not understanding their preconceptions about lawyers and what we want. By not listening carefully enough to the client and their competing pressures and beliefs. By not appreciating that what may be "just another case" to a lawyer may be one of the scariest, most significant events in the client's life. And by not taking time to help them understand the case, the process and the rules.

So, how do we deal with the situation of the lying witness? It would be great if there was a simply answer. Sadly, though, the competing obligations create a dilemma where there is no "good" answer, just an ongoing search for the best route to safety and truth. Clearly, "you better deny it" is not that route.

Throughout this five-part series, we'll explore some of the potential paths for ethical witness preparation.

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