June 30, 2022

Podcast - Finding the Balance

Ethical Witness Preparation Series

In the fourth episode of his "Ethical Witness Preparation" podcast series, "Finding the Balance," litigation attorney Dan Small draws a parallel between witness preparation and translating different languages. Mr. Small also references the Restatement of the Law Governing Lawyers to emphasize the importance of telling the truth.

In the last few episodes of this Ethical Witness podcast mini-series, we've looked at the ethics of witness preparation from the extreme case: the witness who lies, or plans to do so. The tug of war between our ethical obligations to represent our clients zealously and protect the integrity of the justice system is no less challenging when we move away from the extreme. Where is the line between preparation and improper coaching, and how can we find it? The first step is to understand what the witness expects to hear. In a previous podcast series, I talked about the "Perception Gap." As Paul Simon sang it, "a man hears what he wants to hear and disregards the rest." You cannot pretend that your witness is a blank slate that you can write on easily. Your witness did not get their perceptions of lawyers from you. They got it from TV and movies where sleaze is what sells. If your witness expects that you will tell them to lie, everything that you say, or don't say, will be heard through that lens. You are the one who must listen for and correct the distortion. The witness must first understand you are seeking the truth. You have to tell it to them, early and often. You have to ask it of them, early and often. Of course, it's not that easy. Our adversarial system is constructed on the premise that the fact finder discovers the truth best through hearing each side's advocacy of their version. As Supreme Court Chief Justice Warren Burger observed in Geders v. United States, "an attorney must respect the important distinction between discussing testimony and seeking to improperly influence it." The challenge is to find that distinction. Yes, it would be easier if we could stay as far away from that line as possible. However, our role  –  and our obligation  –  does not let us off so easily. We must be zealous advocates.

How do we develop a framework within which to consider the limits on preparation? Let me suggest one from another world. A relative of mine is a successful author. She creates wonderful works of fiction that get translated into other languages for readers around the world. Knowing little about languages, I assumed that translating was a mechanical process. After all, we can go online and instantly get words or phrases translated into a long list of languages. However, when the material is more complex and subtle, like a work of fiction, the translator's task is very different. The translator is not creating new material like the author. Instead, they are taking that material and making it understandable in another language. My relative receives a steady stream of correspondence from translators around the world, some of it quite funny, asking for help. How do you say, "Hell's bells," in Japanese? The essential creation remains the same, but translating it may require suggesting new phrases where comparable ones don't exist or new colloquialisms where the original would not be comprehensible. After observing this process for a while, it struck me that there are meaningful parallels to witness preparation. The witness is the author, the creator of the material. It's their reality, their truth. The lawyer is the translator, helping the witness to communicate that truth and material in a strange language, rhythm, and environment. The lawyer does not create new material, only the witness. Instead, the lawyer makes that creation understandable in a different way. Thus, a lawyer is permitted to prepare the witness to provide truthful testimony that is favorable to the client, as long as the lawyer does not encourage the witness to create a different truth.

The Restatement of the Law Governing Lawyers provides for the following in preparation:

  • discussing the role of the witness and effective courtroom demeanor
  • discussing the witness' recollection and probable testimony
  • revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider his or her recollection or recounting of events in that light
  • discussing the applicability of law to the events at 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
  • discussing probable lines of hostile cross-examination that the witness should be prepared to meet

and maybe most importantly 

  • practicing the witness' testimony and suggesting choice of words

The key is to emphasize to the witness, right from the start, the importance of telling the truth. All ethical rules on this topic are based on that simple concept. The witness needs to understand clearly and unequivocally that counsel is seeking the truth, no more, no less. With that foundation, effective witness preparation can, and must, go forward. As one author put it, "It is probably unethical to fail to prepare a witness, and it is undoubtedly cruel to subject anyone to cross-examination without preparation." No one ever said this was going to be easy.

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