Daniel I. Small, The Daily Record Newswire
It was like watching a slow-motion train wreck. As a young prosecutor, years ago, I was sitting in court and saw a witness self-destruct over something that should’ve been an easy preliminary.
I’ve written much in prior columns on the process of witness preparation. Generally, we prepare our witnesses to testify about the case, but do we also prepare them to testify about the preparation? We should — but in the train wreck, it hadn’t happened, and the result was a disaster.
The unprepared government witness was clearly intimidated by both the situation and the very aggressive defense counsel. On cross-examination, the witness was asked: “You met with the government, didn’t you?” A seemingly innocuous question on paper, calling for a simple answer: “Yes.”
But when it was barked out in an open courtroom as if it were an accusation of a heinous crime, the witness panicked. You could almost see the wheels turning in his mind: “Yes, of course I met with the government, but isn’t that confidential? And besides, they didn’t tell me to lie or anything bad, and that’s what this lawyer is really asking, and the jury is going to get the wrong idea, and that is going to make me look bad — when it shouldn’t.”
And so, from that tortured logic, thinking three questions ahead, the witness answered the initial simple question with a simple — and false — “No.” Lack of preparation led to panic, which led to perjury.
Most witnesses are completely unfamiliar with the preparation process, and therefore unfamiliar with what they should say about it if asked. Thus, preparation about preparation becomes an essential part of the lawyer’s responsibility. At its most basic level, there are five key talking points: preparation, privilege, truth, questions and FRE Rule 612.
1. Preparation
The witness needs to understand what preparation is: essential, common and accepted. Indeed, “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.” District of Columbia Bar, Ethics Opinion No. 79 (1979).
All lawyers prepare their witnesses. The other side is preparing its witnesses, and no matter what tone is used in questions about it, everyone knows it’s completely proper. There is absolutely nothing sleazy or suspect about it. Relax and enjoy!
2. Privilege
I was asked a while back to give a two-hour presentation to a group of lawyers on current issues regarding the attorney-client privilege. If there is that much for lawyers to discuss about the privilege — and there certainly was — how can we expect a lay person to understand it? We can’t.
First, help the witness to understand what privilege exists, if any. If the witness is a direct client, then the answer is clear. But most laypeople assume that a conversation about the case with almost any lawyer who’s “on the same side” is somehow privileged.
If you are company counsel, the Upjohn warnings are an important part of any contact with employee witnesses. If you are counsel for others, including for the government, it is critical to make sure that the witness understands what the relationship is — and isn’t.
Second, what does the privilege mean for questions about preparation? If the witness is a client, make clear that any communication, oral or written, may be privileged, and no one should be asking or answering questions about it. Yet it is perfectly appropriate and surprisingly common for opposing counsel to ask questions about the preparation, despite the privilege.
As a general matter, client witnesses can talk about the logistics of preparation: who, what, when, where. But that conversation ends, I tell clients, at the conference room door. You can be asked who went in the door and when, but not what they did once they were inside. That includes what is said, what is written, and even what documents are shown, under the “selection and compilation” doctrine.
On the other hand, non-client witnesses must be assured that just because they can be asked about what is said in preparation, that does not change the need to prepare or the appropriateness of the process. The witness should not feel or act defensive about having been diligent in preparing.
Make sure that you are clear on your expectations: We are not here to turn you into something you are not — some “super-witness” immune to normal, human emotion — or to have you say anything that you’re not comfortable with. We are simply here to listen, learn, and help you understand this very unnatural environment.
3. Truth
Whether the witness is a client or not, friend or foe, the key is always to ask for the truth. Ms. Witness, that is all I want and all I ask for. If I ever say anything that seems different, please stop me. It doesn’t help me if I misunderstand the case, and I can’t help you if I don’t know the whole truth. Above all else, I want you to be 110-percent comfortable if anyone asks you what I told you to say, answering, “She just told me to tell the truth.”
That message carries over into the language that we use. Early and often, we want to make clear that this is not a rehearsal, and there is no story or script: If you are asked about the preparation, listen carefully for those kinds of loaded and distorted words, and never agree with them if they are not accurate. We are practicing not so that you memorize some prefabricated nonsense, but so you feel more comfortable in this new and difficult environment.
4. Questions
Whoever your witness is, frame your preparation as much as possible in the form of asking questions. All witnesses are more comfortable when you’re not merely telling them what to say. Tell the non-privileged witness, when asked what you told him to say, to respond, somewhat quizzically: “All he did was ask questions!” After all, questions ought to be an integral part of witness preparation: to find out what the witness knows, to find out what his reaction would be when confronted with other facts, documents, etc., and to find out how good he is at listening to questions. It’s good practice for this strange new environment.
5. FRE Rule 612
One sometimes significant exception to the privileged nature of preparation can be Federal Rule of Evidence 612. That rule requires disclosure of any “writing” that a witness uses “to refresh memory” for the purpose of testifying.
Loosely interpreted, one could argue that almost any document a lawyer shows a witness is for that purpose. So Rule 612 can be a powerful weapon in the hands of an aggressive questioner.
But with care that is not really the case. First, if there are documents that have not already been provided in discovery, try to avoid the issue by not showing them to the witness in preparation.
Second, make sure that you explain the rule to the witness, as well as the fact that many documents are not being shown to refresh memory, but simply to provide the context or other essential elements to the testimony. Anything can refresh memory if it truly brings back a recollection to the witness, but just because a document provides useful context or content, it doesn’t mean that it refreshes a specific memory.
Witness preparation, when done properly, is an extensive and intensive process. Ideally, once in the witness chair, your witness will hear as few questions as possible for the first time.
How ironic and sad would it be for the witness to spend time in preparation only to be undone by unexpected questions about that very preparation. Yet it happens, and surprisingly often. Don’t let it happen to your 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.
