By Daniel I. Small
The Daily Record Newswire
Just settling into the witness preparation session, your client nervously asks: “What if they ask about preparation?” It’s a frequent question — and concern — from witnesses.
Contained within it are all the common stereotypes about dishonest lawyers improperly “coaching” witnesses and telling them to lie. Counsel need to respond to the concerns, whether or not the witness is bold enough to raise them. There are four key parts to the answer.
1) Preparation is OK.
Despite whatever suspicious tone a questioner may use to raise the issue, witness preparation is normal and proper. Being a witness is a difficult and unnatural process. We would not be doing our job if we did not fully prepare witnesses. By the way, the questioner knows this. He prepares his witnesses, too!
In Ethics Opinion No. 79 (1979), p. 139, the District of Columbia bar states: “A lawyer who did not prepare his or her witness for testimony, having had an opportunity to do so, would not be doing his or her professional job properly.”
2) All we want is the truth.
Many witnesses don’t know this, or don’t believe it, so you have to tell them. All we want is the truth; therefore, so much of the preparation will be me asking you questions, to make sure that I know as much as I can. I may be able to help you understand and adjust to the bizarre language and rhythm of the witness environment, but if I ever say anything that isn’t 100-percent accurate, please stop and correct me. It doesn’t help me or you to go forward with any misunderstandings about the case.
3) Prepare for questions about preparation.
Many questioners will ask a witness about preparation. That’s OK. They’re hoping to catch the witness by surprise, so he will feel bad or say something bad about the process.
Don’t fall for it. A witness can answer questions regarding the logistics of preparation: who, when, where. However, if there is an attorney-client relationship with the preparer, that’s all. Once the conference room or office closes, those are privileged communications.
4) Explain the privilege issues.
Privilege issues can get confusing, even for lawyers. Don’t assume that your witness understands. The privilege may include: oral communications, whether in person or on the phone; written communications, whether by letter or preparation memo; and work product in many forms. One important example worth explaining is the “Selection and Compilation Doctrine.”
In a recent case of ours, there were more than 50,000 documents (not that many, in this era of emails and texts). We had gone through the documents and pulled out a much smaller number — still over 100 — that we felt were important to discuss with the witness in preparation.
In the deposition, the questioner started asking about the logistics of preparation, and then asked: “What documents did you review with your lawyer?” I objected and instructed the witness not to answer, on grounds of privilege. One of the lawyers in the room was outraged: “That’s not privilege; it’s just documents!” Wrong.
The federal courts have extended the work product protections through the Selection and Compilation Doctrine to encompass attorney compilations on the basis that the process of selecting and compiling documents is often demonstrative of the attorney’s mental impressions and legal theories regarding how the documents relate to the issues in question.
In Sporck v. Peil, 759 F. 2d 312 (3d. Cir. 1985), cert. denied, 474 U.S. 903 (1985), an attorney in a securities fraud case prepared a defendant for deposition by selecting a specific subgroup of documents from a large body of documents, and reviewed the subgroup with the defendant.
At the deposition, opposing counsel asked the defendant which documents he had reviewed, and the defendant refused to answer. The 3rd Circuit upheld the defendant’s refusal to answer by holding that the selection and compilation of documents used to prepare a client for a deposition is protected by the work product doctrine.
The court stated: “In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case … indeed, in a case such as this … the process of distillation is often more critical than pure legal research.” Id. at 316 (quoting James Julian, Inc., 93 F.R.D. at144).
Similarly, in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986), an in-house counsel refused to respond to questions concerning the existence and non-existence of various documents. The 8th Circuit held that the refusal to answer was proper because the answer to the question would reveal the attorney’s legal theories and thought processes. In particular, her ability to remember specific documents from a large number of documents would reveal her familiarity with such documents and her potential reliance on them to develop her client’s case.
Nevertheless, attorneys seeking to protect their selections must reconcile the tension that exists between the selection and compilation theory and Federal Rules of Evidence.
The court in Sporck established three requirements for the applicability of Rule 612:
1) “The witness must use the writing to refresh his memory.” Being a witness is not like a high school quiz on how much you remember. We are not showing you documents to refresh your memory. Your memory is fine as it is. The documents are just to help us more fully discuss the issues.
2) “The witness must use the writing for the purpose of testifying.” No witness should rely on his memory of a document he saw in preparation. Remember what we previously discussed: If your witness is asked a question, the answer to which is contained in a document, make sure the witness asks to see the document! Don’t let him get into a debate about a document that’s not in front of him.
3) “The court must determine that production is necessary in the interests of justice.” The witness needs to understand (assuming it’s correct) that the documents we’re reviewing are not some secret bad stuff. They are all documents that either came from one or more of the parties, or have been (or will be) provided to one or more of the parties. The key here is that we had to use our time and legal knowledge and experience to review them and pull out what we felt was important to discuss. Otherwise, it would have been crazy and counterproductive to try to go through all the thousands of documents with the witness.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (4th Edition, 2014). He can be contacted at dan.small@hklaw.com. Laury Lucien, a summer associate at Holland & Knight, assisted with the preparation of the above column.
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