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New ABA Opinion Parses the Ethics of Witness Prep

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Suggesting a certain choice of words is okay.

It isn’t often that a legal ethics opinion opens with a fictional scene from the TV show Deadwood.

But that’s how ABA Formal Opinion 508, The Ethics of Witness Preparation, begins: with a scene from Season I, Episode 5, The Trial of Jack McCall:

Jack McCall: Well, I’m a hard case for you, counselor. And no mistake, everyone in there saw me shoot him.

Lawyer: If you’ll let me set our strategy, I don’t think we’ll dispute what people saw.

Jack: Now, I guess you’re here to break me out. (Lawyer chuckles)

Lawyer: Son, did James Butler Hickok ever kill a — relative of yours?

Jack: James Butler Hickok?

Lawyer: Wild Bill Hickok. Did he ever kill a brother of yours or — or the like?

Jack: A brother?

Lawyer: I’m asking you if what happened in that saloon was vengeance, for the death of a family member? Possibly a brother in Abilene. Or the like.

Jack: (Jack smirks, cocks head pensively) A brother in Abilene . . . .

(Lawyer smiles, pats Jack twice on the knee, and exits).

Deadwood, HBO, Season 1, Episode 5

“Preparing a witness or a client to testify in advance of a deposition or adjudicative proceeding – or in some situations providing a client or witness with midstream guidance during the testimonial process – is such a familiar component of a lawyer’s trial-advocacy repertoire that it needs little introduction or explanation,” says ABA Formal Opinion 508. “Many would condemn a lawyer’s failure to prepare a client or witness. Failure to do so competently and diligently can constitute an ethics violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible.”

The opinion goes on to parse various factual scenarios involving witness preparation.

Read ABA Formal Opinion 508.

Read an ABA Journal article on the opinion.

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Proper Witness Prep under Model Rule 1.1

Under Model Rule 1.1, lawyers can do the following:

• remind the witness that they will be under oath

• emphasize the importance of telling the truth

• explain that telling the truth can include a truthful answer of “I do not recall”

• explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition

• suggest proper attire and appropriate demeanor and decorum

• provide context for the witness’s testimony

• inquire into the witness’s probable testimony and recollection

• identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony

• review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts

• identify lines of questioning and potential cross-examination

• suggest choice of words that might be employed to make the witness’s meaning clear

• tell the witness not to answer a question until it has been completely asked

• emphasize the importance of remaining calm and not arguing with the questioning lawyer

• tell the witness to testify only about what they know and remember and not to guess or speculate

• familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information.

“When it comes to preparation of a client or witness for a testimonial event such as a trial or deposition, there is a fair amount of latitude in the types of lawyer-orchestrated preparatory activities that are recognized as permissible,” the opinion says.

SOURCE: ABA Formal Opinion 508 (americanbar.org)

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