The line between expert witness preparation and coaching is thin at best. Attorneys are expected to prepare witnesses for the onslaught of questions prior to deposition or trial without crossing that line. So, how do attorneys get as close to the line as possible without crossing it?
To begin, we differentiate the two terms as one positive (preparation) and the other negative (coaching), even though the lay definitions may be similar. Attorney Paul D. Friedman, according to an article by Robert Ambrogi, believes the phrase ‘witness coaching’ is sometimes “perceived as obfuscating the truth or instructing the witness to lie.” Ambrogi, on the other hand, describes preparation as the act of “instructing the witness on demeanor, language [and] truthfulness.”
Although some law firms prepare information for experts that explains the importance of giving honest and truthful testimony, Ambrogi found a number of attorneys who emphatically instruct expert witnesses to always tell the truth. Mr. Friedman, for example, finds it important to explicitly define the role of a witness to the expert. “I tell my experts straight up front, ‘You’re not an advocate.’ I want you to just answer the questions. If I think there’s material that needs to come out, you’ll have to trust me to bring that out.”
Louis Schepp, a New York attorney, insists that he has “no obligation to have [his] expert put everything in” and that “as long as you’re not asking the witness to lie or misrepresent, you’re OK.” Schepp has no reservations “about a witness omitting facts, provided the experts has not based his or her opinion on the submission.”
So it would seem that as long as an attorney doesn’t ask the witness to lie they’re safe. But should an attorney push the envelope in order to get closer to the line?
In paraphrasing W. William Hodes, a prominent legal ethicist, Abrogi writes, “he [Hodes] believes a lawyer’s obligation to be a zealous advocate requires the lawyer to get as close to the line as possible without crossing over it.” To that end, Mr. Hodes believes that when attorneys shy away from the line they end up “selling [their] client short.”
While Mr. Hodes’ opinion represents one belief, he does note that from conversations with other attorneys, some don’t share his view. “I’ve heard lots of people say that what you should do is figure out where the line is and stay as far away from it as you can. I reject that completely,” Mr. Hodes explains.
Ultimately, an attorney’s decision to either approach the line or avoid it all together will depend upon their personality and interpretation of the facts. Either way, an attorney has the obligation to always represent the truth and their client to the best of their abilities.
Want to read more about ethics? Check out our Attorney Code of Ethics.