September 15, 2023

ABA Panel Spotlights Critical Value of Witness Prep

Massachusetts Lawyers Weekly

Litigation attorney Dan Small was interviewed for a Massachusetts Lawyers Weekly article about a recent American Bar Association (ABA) Ethics Opinions on witness preparation. Formal Opinion 508 states that effective witness preparation is part of a lawyer's duty to provide competent representation as well as offers guidance on when effective preparation becomes unethical coaching. Mr. Small, who is frequently called upon by lawyers nationwide to assist in preparing witnesses in high-profile cases, commented that the value of preparation cannot be understated.

"The preparation of witnesses has always been one of those things that a lot of lawyers — even very good lawyers — believe they know how to do when they really don't, or don't know how to do it well," he said. "We really don't understand just what a challenge we have as lawyers to help regular people succeed in this very bizarre and unnatural environment."

The opinion also address remote proceedings. While some jurisdictions have adopted protocols to address impermissible coaching and other issues that arise in the remote environment, the ABA has so far not adopted formal requirements in this area. Instead, the opinions offers lists of suggested approaches for lawyers. Mr. Small said he wants the organization to go further.

"Many courts have issued detailed protocols and orders for remote depositions, but they are scattered all over the country," he explained. "There's an important function for the ABA to provide a model protocol."

READ: ABA Panel Spotlights Critical Value of Witness Prep

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