Andrew Rubin, Esq.

How does witness preparation differ from witness coaching?

There is an axiom among trial attorneys that "You should never ask a witness a question that you don't already know the answer to." Effective witness preparation is one of the keys to effective case presentation and to jury persuasion. But sometimes preparing a friendly witness before the trial can run the risk of becoming too much of a good thing. Witness preparation is one matter; witness coaching, on the other hand, is unethical.

The problem with witness coaching is that it may encourage a witness to provide the answers that the examining attorney desires, regardless of whether those answers are completely accurate or even true. If this becomes the case, then instead of helping to inform the jury the testimony of the witness may serve to confuse or even to deceive.

Take, for example, a recent case in which during the routine pretrial exchange of exhibit information between the opposing attorneys, one of them accidentally sent to the other documentation suggesting a strategy to prepare witnesses not only for the questions they might receive, but also to equip them with the answers to those questions. In a situation like this, whether the documentation is evidence of witness preparation or coaching may depend on the circumstances under which the attorney wrote down the questions and answers:

If, for example, the attorney and the witness engage in a conversation before the trial and based on that conversation the attorney prepares a "script" outlining those questions and answers, that may be considered to be witness preparation and is not unethical.

But if without having interacted with the witness the attorney prepares the same script, that may have the effect of creating what some attorneys call a "robo-witness" who is being coached to provide answers regardless of actual knowledge. That may be unethical.

Attorneys in every state, including New Jersey, are bound by ethical rules that address a wide range of behaviors and tactics involving their interactions with clients, witnesses, opposing counsel, the jury and the court. Violations of these rules may not only subject an attorney to professional discipline but in severe cases may also jeopardize the outcome of a trial. It is therefore imperative not only for a trial attorney to be aware of ethical rules so as to avoid violating them, but also to be alert to situations in which opposing counsel may be doing so. 

Source: Daily Business Review, "Thomas Ice: Ocwen Lawyer Spoon-Fed Questions and Answers to Robo-Witnesses," Samantha Joseph, May 19, 2015

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