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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, May 30, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.

$297.00
CLE
ALL

This CLE webinar will discuss the ethics of witness preparation in light of ABA Formal Opinion 508, "The Ethics of Witness Preparation." The panel will examine this essential skill, recurring witness preparation strategies, and practices, and will then debate and critique when some perfectly ethical practices may cross the line and become unethical.

Faculty

David Lefkowitz
Principal
The Lefkowitz Firm LLC, LLC

Mr. Lefkowitz represents individuals and companies (corporations, LLCs, PCs, etc.) in their claims for legal malpractice (legal negligence) and similar claims such as breach of fiduciary duty; trustee misconduct; executor misconduct and ethical misconduct by attorneys and other fiduciaries. He also represents attorneys and law firms with regard to risk management, law firm dissolutions and attorney’s fee disputes.

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Anthony L. Cochran
Partner
Smith Gambrell Russell

Mr. Cochran represents individuals and businesses in a wide variety of matters. He has tried jury trials, bench trials, administrative and regulatory hearings, and medical peer review hearings. He has appeared on many panels and spoken at seminars on a variety of topics, including the application of the Daubert rule and a host of topics related to white-collar criminal law and investigations.

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Guy O. Kornblum
Principal
Guy O. Kornblum, APLC

Mr. Kornblum has specialized as a trial and appellate lawyer for 45 years. He has handled over 3,500 litigated matters to conclusion and has several million dollar plus cases to his credit. Mr. Kornblum’s practice focuses on representing plaintiffs, claimants, policyholders and victims of tortious and contractual wrongs in insurance bad faith, among other claims.

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Description

Witness preparation has always been an expected and even essential part of trial preparation. Indeed, failure to prepare witnesses may even be malpractice or an ethical violation. Any lawyer who engages in preparation of witnesses, whether for administrative or other types of hearings or court or jury trials, must know the ethical rules and restrictions on preparing witnesses and clients.

But as FO 508 discusses, there is a big difference between ethical preparation and actions that interfere with the integrity of the justice system and obstruct another party's access to evidence (Op. 508 at 4). A lawyer's "duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.” In the Matter of Eldridge, 82 N.Y. 161, 171 (N.Y. 1880).

FO 508 is particularly concerned with commonly used remote technologies that can be used to "coach" witnesses in new and ethically problematic ways, especially during testimony or what it calls "midcourse testimonial influence." As the panel will discuss, this type of coaching often produces much of the conduct that lawyers complain make depositions so difficult.

Listen as this panel of experienced litigators and ethics expert use vignettes to highlight what FO 508 has to say about the essential skills and ethics of witness preparation.

Outline

  1. Limit on coaching
    1. "Don't volunteer information"
    2. "The less you remember, the better"
    3. "If in your mind's eye you can see and hear an event, say you don’t recall"
  2. Rehearse questions and answers
    1. Question-and-answer script
    2. Practice on video and have a consultant coach the witness
    3. Have many lawyers in the room to intimidate the witness
  3. Tell a witness to "downplay" the number of times a witness and a lawyer met to prepare
  4. Discussing the applicability of law to the events at issue
    1. Before you tell me what happened, let me explain the law to you first
    2. Before you tell me what happened, let me review the factual context into which your observations will fit
    3. Before you tell me what happened, let me tell you other testimony or evidence that will be presented and ask you to reconsider your recollection or recounting of events in that light
  5. Suggest a choice of words

Benefits

The panel will review these and other key issues:

  • How does the opinion change the ethics rules?
  • What are the ethical limits of working with favorable witnesses and clients in preparing them to give testimony?
  • What is the difference between witness preparation and coaching a witness, and how do you draw the lines between them?