Proper Preparation
When instructing a witness for questioning, the following tactics should be used to ensure an ethical preparation:
- Educate. Review and explain the legality of the issues at hand as well as the questioning procedure.
- Lay out a plan. Discuss how you’re going to question the witness. If the witness is your client, then you can also discuss how you’re planning on attacking the case and how his testimony will play into it.
- Encourage honesty by reassuring competence. This is your opportunity to make sure that the witness knows that he must stick to honest facts, and it isn’t his responsibility to alter facts to improve your case. It’s your job to make whatever he says work for the case—whether good or bad, as long as it’s honest.
- Build confidence. Reassure the witness that he has nothing to fear as long as he is honest.
- Lessen confusion. Discuss how questioning works and how the opposing counsel may try to trip him up with legal jargon or confusion. Provide tools to lessen that confusion such as telling him to repeat or rephrase the question.
- Rehearse potential questions. Help the witness get comfortable with the process of answering questions in order to avoid nervous stuttering or anxiety.
- Provide support. Give your witness all of the encouragement and support he needs to feel comfortable during questioning.
Coaching Misconduct
Some lawyers try to skirt the line of propriety by giving their witnesses an improper “edge.” Not only is this type of behavior completely unethical, it can also seriously damage a case and even cast doubt on the lawyer’s professional morality and competence. Common coaching tactics include…
- Encouraging dishonesty. It’s unethical to instruct the witness to lie about facts or conceal pertinent evidence that may hurt his case.
- Plotting misconduct. It’s unethical to assist or counsel a client to engage in felonious conduct or behavior that you know knows is fraudulent.
- Drafting testimony. It’s unethical to provide a script or specific terms or phrases for the witness to say (or not say) in order to misrepresent facts.
- Baiting. It’s unethical to improperly influence or lead a witness into giving a false testimony. This includes knowingly presenting false evidence and misrepresenting facts to assist a witness’ false testimony.
- Falsely influencing other witnesses. It’s unethical to encourage your witness to provide false information in order to influence other witnesses to change their testimonies.
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