Preparing a Non-Party Witness: What Can A Lawyer Say and Not Say?

In almost any business litigation case, there are witnesses that are not parties to the case—that is, they are not clients of the attorneys in the case. They are neutral bystanders or others who have some evidence relevant to the issues in the lawsuit.

When they are going to be deposed, or even before trial, those witnesses present a challenge to commercial litigators.

On the one hand, it is fundamental to defending a client’s interests, to knowing what that neutral witness will say under oath. Sometimes that’s impossible—some witnesses don’t want to talk to any attorney before the actual deposition or trial—but the best practice is for an attorney to at least try to speak to a witness.

Friendly Witnesses

Often, the witnesses that will speak to the attorneys prior to a deposition, are “friendly witnesses,” that is, witnesses that are anticipated to be favorable to that attorney’s client, position, or arguments in the case. Some may even be quite cooperative with the attorney.

But speaking to a non-party witness also carries with it, its own set of challenges, particularly with legal ethics, because it is generally not legal or ethical for an attorney to “coach” a witness, or tell a witness what to say in an upcoming deposition.

What Can an Attorney Say?

There are actually very few cases or even ethical rules that talk about this, even though it’s a practice that is done routinely. What we do know from ethics opinions around the country, is that it is clearly not allowable to ask a witness to testify falsely. But that rarely happens, and most attorneys know better than to even come close to violating this rule.

More often, the dilemma is when does helping a witness with his or her testimony truly become coaching the witness, or putting words in the witness’ mouth?

Helping witnesses use proper words is probably OK, so long as the words don’t change the meaning of the witness’ testimony. In fact, this is done often with expert witnesses, where attorneys may tell them to use layperson’s language, as the expert witness may otherwise use technical language that a jury won’t understand.

Advising attorneys how to dress, speak up, where to look, and other physical characteristics, are probably Ok as well, as these do not alter the substance or content of the witness’ testimony.

As a general rule, attorneys speaking with non party witnesses should, in addition to fact-finding, think of the pre-deposition or pre-trial  interview as a way to prepare both the lawyer and the witness, but not as a way of “improving” a witness’ testimony.

Remember as well, that even if you could tell a non-party witness to say anything you wanted him or her to say, there is no privilege between the lawyer and that witness—so coaching is dangerous for both ethical, as well as strategic reasons.

Is your attorney ready for deposition or trial? Call our West Palm Beach business attorneys with any questions you may have at Pike & Lustig today.

Sources:

rid.uscourts.gov/sites/rid/files/historical/documents/20170927-LitigationAcademy-Direct-CrossExaminationSkills-NK-Presentation-PP.pdf

americanbar.org/groups/government_public/publications/public-lawyer/2022-winter/effective-witness-preparation/