Examinations for Discovery #4 – Coaching vs. Preparation

Where to draw the ethical line

Often, the witness who will testify at the examination for discovery or deposition will be your client. If your client is an organization (e.g. a company, department, or partnership), then the witness may be a decision-maker with skin in the game.

Lawyers can’t coach their witnesses. It’s a fundamental principle of legal ethics. But what if the witness asks you how to answer a question? Or asks for legal advice about the significance of an answer?

Long ago, this wasn’t a problem, except in the field of criminal law. Preparing your witness consisted of a stern warning to tell the truth, keep answers short and restrict answers to the questions asked. Whatever that all meant. We’ve come a long way as a profession since then. What was once the standard practice is likely negligence today.

If the witness asks for legal advice (e.g. “How would it affect my case if I were to say XXX?”), be on your guard. The question may not be innocent, but that is not your problem. Your client is always entitled to seek your advice. Be watchful that the witness doesn’t tailor the answer to fit the optimal outcome. No, you are not coaching if you provide your advice. But you may be encouraging the witness to act out of character and to depart from the truth in a way that opposing counsel will exploit, especially when the witness said something earlier that is opposite to what the witness will say now. Impeachment may sink your witness’s credibility. We discussed impeachment in an earlier post, Cross-examinations #3, here.

The situation will often arise when you set out the essential points that the witness must make to succeed or when you run a practice Q&A playing the role of opposing counsel. We discussed the ‘hard questions’ in the context of direct examinations in Direct Examinations #4, here.