Coaching Witnesses Online: In the ABA’s Opinion, It’s Bad
Not long ago, I wrote an article here about witness coaching. I said that my online arbitration orders forbid communicating with a testifying witness in any way except to answer questions. I also said I wondered whether it was really necessary to tell people that. Everyone knows that feeding the witness answers is cheating, right?
A Case of Coaching By Message
But then I came across a case where an executive messaged a sales rep of his to tell him how to answer questions while testifying in an arbitration. He eventually got caught. The opponent party learned about it during discovery in related litigation. The Court was then able to compare the timestamps on the transcript with those on the messages and see just when and how the witness was coached.
The Court found the arbitration award was obtained by fraud. It extended the normal time period for bring a motion to vacate an award based on the previously undiscovered fraud. Then it vacated the award. And the Court decided to resolve the dispute itself in court because the party had abused its contractual right to arbitrate.
But still, I thought, this was a party to the case doing this and not a lawyer. Surely no lawyer would do such a thing. Wrong again.
Lawyers Do It and the ABA Reacts
The ABA found lawyers had coached witnesses online. It then issued ABA Formal Opinion 508: The Ethics of Witness Preparation. It said that “[t]he task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously ‘coach’ witnesses in new and ethically problematic ways.”
Coaching In the Old West
The Opinion begins with an excerpt taken from the script of the HBO hit show, Deadwood. Here it is:
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)
Preparation of Witnesses Is Fine – Maybe Even Ethically Required
The ABA notes that witness preparation is appropriate. In fact, it may be necessary to meet the lawyer’s ethical requirement of thoroughness and preparation. So, it provides a fairly long list of activities lawyers can ethically engage in:
• 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.
Coaching a Witness to Testify Falsely (or Just Skedaddle) Is Not Fine
The Opinion gives these examples of unethical behavior: “. . . counseling a witness to give false testimony, assisting a witness in offering false testimony, advising a client or witness to disobey a court order regulating discovery or trial process, offering an unlawful inducement to a witness, or procuring a witness’s absence from a proceeding.”
Coaching a Testifying Witness in Person is Unethical
The Opinion give examples – blatant and subtle – of unethical coaching during testimony. Blatant examples include “winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony.” More subtle examples are “the so-called ‘speaking objection,’ or “suggestive objection.” These are ‘statements that go beyond just stating the objection or the basis for the objection and are intended—or at least suspected of being intended—to coach the witness and impede the deposing attorney’s discovery.’” Another may be instructing a witness not to answer without a reasonable basis.
Some lawyer activities may be ethical or not, depending on court rules. For example, lawyers sometimes attempt to “exercise midcourse testimonial influence and undertake damage control during a break or recess.” The rules of some courts forbid such attempts. Others do not.
Coaching In Remote Settings
The ABA’s Opinion provides interesting recent examples of lawyers – yes lawyers! – who engaged in unethical online coaching. Here are some examples it mentions:
· When confronted about the text messages by counsel taking the deposition, the lawyer falsely denied texting the witness and stated he was only receiving a text from his daughter. Then, after agreeing to put his cellphone away, the lawyer continued sending texts. He was caught when he inadvertently sent text messages intended for the witness to deposing counsel. The Florida Bar v. James, 329 So.3d 108, 109-112 (Fla. 2021)
· A lawyer who texted a witness while the witness was testifying at trial displayed a “blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Sky Dev. Inc v. Vistaview Dev. Inc., 41 So. 3d 918 (Fla. Dist. Ct. App. 2010).
· During a remote video-conference deposition with the lawyer in one state while the deponent was in another, the lawyer and deponent exchanged five text messages. Because the lawyer also accidentally sent a text meant for the deponent to opposing counsel, he got caught. In ordering production of the text messages, the court rejected assertion of attorney-client privilege for the texts. The texts, the court reasoned, violated FED.R.CIV. P. 30(c) (“depositions are to be conducted in the same manner as trial examination”). The texts were equivalent to passing notes to the client with the intent “to influence the fact finding goal of the deposition process”). Wei Ngai v. Old Navy, No. 07-5653 (KSH) (PS), 2009 U.S. Dist. LEXIS 67117, at 4 (D.N.J. July 31, 2009).
· A lawyer was suspended for 60 days by consent where the lawyer used a chat feature to instruct his client during cross-examination at a trial using GoToMeeting platform. In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022).
Note that, in two examples, lawyers got caught because they accidently sent their coaching texts to opposing counsel. So, the coaching wasn’t just unethical, it was incompetent. But even competent coaching is wrong.
How to Stop It
The ABA Opinion doesn’t spend much time agonizing over whether online coaching is unethical. It is. Instead, the Opinion provides approaches that can be used to prevent or ferret out unethical coaching. It gives these examples:
• Skillful cross-examination
• Orders directing uninterrupted testimony
• Motions to terminate or limit a deposition or for sanctions
• Inclusion of protocols in remote deposition orders, scheduling orders, and proposed discovery plans
• Administrative orders governing the conduct of remote depositions
• Inclusion of remote protocols in trial plans and pretrial orders (I issue online guidelines, as do most arbitrator know)
• Development of guidelines and best practices for conduct in remote proceedings
• Professionalism/Civility/Courtesy Codes
Forewarned Is Forearmed
I am surprised that there is as much online coaching going on as the ABA found. It is not something I have ever seen in my work as an arbitrator or as an advocate. The lawyers I’ve seen in my arbitrations are often jealous advocates, but they have uniformly been ethical.
Even so, my Scheduling Orders typically prohibit taking breaks when a question is pending. My Online Guidelines, as I said, typically require “no communication” with a testifying witness, other than to examine the witness. I usually even include a provision that the Arbitrator may ask a witness to orient his or her webcam to provide a 360-degree view of a remote venue in order to confirm that no unauthorized persons are present.
It seems to me most good lawyers must understand that, if they get caught coaching witnesses, the credibility of the witness will be destroyed. The credibility of their case might even be destroyed. And they are likely to be the subject of an ethics proceeding.
Still, you never know what may come up. So, counsel will want to consider what measures may be appropriate for their arbitration to prevent or catch online coaching. This will include use of some of the approaches noted by in the ABA’s Opinion.
Welcome that the 21st century, folks. It’s always something!