Haynes and Boone's Newsroom
Ethical Witness Preparation: Stepping Back from the Line for the Lecture
09/01/2010
Stan Perry, Teshia N. Judkins
Ask seasoned trial lawyers and they will tell you that witness preparation - whether for deposition or trial - is the hardest part of their job. It is also an important part of the American legal system.1 Proper witness preparation is truly a fine art.
Yet, there are very few courses on witness preparation, and most lawyers lack any training on it.2 There is surprisingly even less guidance on the ethics of witness preparation.3 Yet, a lawyer who fails to properly prepare a witness may lose her case and client,4 but a lawyer who fails to ethically prepare a witness may lose her reputation and career.5 If witness preparation is important, ethical witness preparation is paramount.
One of the most famous, or perhaps infamous, witness preparation scenes is the Lecture from Robert Traver's novel, Anatomy of a Murder. Over the last half century, many have debated whether that Lecture crossed the ethical line; a debate that likely won't be resolved soon. By modifying the Lecture, however, a lawyer can at least step back from the line.
Excerpted from The Houston Lawyer, July/August 2010, www.thehoustonlawyer.com. To read the full article, click here.
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1 See, e.g., Peter H. Anderson, How to Avoid Common Ethical Pitfalls, 2006 NAT'L BUS. INST. ON BUILDING YOUR CIV. TRIAL SKILLS 96, 99 (explaining "vital importance" of witness preparation); David H. Berg, Preparing Witnesses, 13 No. 2 LITIG. 13, 14 (1987) (concluding it's "probably unethical to fail to prepare a witness"). Nevertheless, many other countries and international courts prohibit it. E.g. Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 K.Y.L.J. 1001, 1009-10 n.38 (1999) (Australia and Canada); Elaine Lewis, Witness Preparation: What Is Ethical, and What Is Not, 36 No. 2 LITIG. 41, 41 (2010) (England, Belgium, Italy, France, Switzerland, and the International Criminal Court).
2 See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 279 (1989).
3 See Lewis, supra note 1, at 42 (noting absence of law); Zacharias & Martin, supra note 1, at 1001 n.2 (same).
4 "There are lawyers who refuse to woodshed witnesses at all... Their clients most often are referred to as 'appellants.'" Berg, supra note 1, at 14.