• Protect Your Witness Prep Work Product
  • March 3, 2015
  • Law Firm: Holland & Hart LLP - Denver Office
  • Is there anything wrong with a witness meeting with a communication specialist in order to prepare for deposition or trial testimony? Maybe 30 years ago, the answers would have been "yes," "maybe," or "best not to arouse suspicions." But trial consulting has come a long way from those early days when witness preparation facilitated by specialists was sometimes seen as just a new way of woodshedding. Now, the practice is quite normal. In higher stakes cases, it is a safe bet that both sides are bringing in communications or psychology experts to help the fact witnesses prepare testimony that is clear, confident, and effective.

    But that doesn't mean the fact of those meetings, much less the substance, ought to be broadcast. Attorneys, consultants, and clients all have a strong interest in protecting the work product that is at the heart of witness preparation. In recent years, there have been a few notable incidents where opposing counsel have tried to "out" the consultant and open the door to what was discussed. In the Jeffrey Skilling (Enron) trial, for example, the consultant was identified in court, and her C.V. was put up on the screen. Dr. Phil McGraw --once a trial consultant -- was also the subject of a prolonged court battle aiming for discovery. There have been an additional handful of cases around the country that have also sought to discover witness preparation work product. By and large, the resolutions of these cases have been on the side of protecting the information: barring exceptional circumstances, opposing counsel has no legitimate reason to inquire into meetings that are clearly attorney work product. Even more encouraging, attempts to pierce that veil have been notably rare, especially given how common the practice now is. Still, there is reason to be cautious. This post will point the reader to a few important articles on the subject and share a few broad principles that ought to be applied by counsel, consultants, and witnesses.

    One of the first articles on the subject, and one that has been extensively cited in a number of the court opinions, was written by Stan Davis and Tom Beisecker in 1993: "Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary's Wits?" Thankfully, in the time since, it has not turned out to be a very effective way. A more recent article by David Perrott and Daniel Wolfe (2010) in The Jury Expert provides a very good overview of the law, including the critically important third circuit case that consultants know affectionately as the "Dr. Phil case," but is more properly known as In Re: Cendant Corp. (3d Cir., No. 02-4386, Sept. 16, 2003). The bottom line result is that, while opposing counsel can ask about the fact that a meeting occurred and who attended, the inquiry should stop there.

    Of course, this is still an area of emerging law, and there are some variations (covered in the Perrot and Wolfe article) regarding both purpose and venue. But I do want to share a few general principles that should be followed everywhere.

    For The Attorney: Be There

    We will occasionally have attorneys ask us if we can simply meet with the witnesses and get them ready while counsel attends to other things. In every case, we will say, "No, you or one of your colleagues or associates need to be there." In theory, any witness preparation session is being conducted at the attorney's direction and for the benefit of the case. In my mind that makes it work product. But, alas, appeals courts are not obligated to follow my opinion, and the issue of whether an attorney-free meeting qualifies as work product has not yet been resolved. When the attorney is absent, it is arguable, but when present, the case for work product protection is quite solid. In addition, the attorney plays a critical role in the session by conveying her own expectations for witness behavior, and for conducting mock questioning.

    For the Consultant: Make Sure the Purpose is Clear

    For a number of reasons, it is important to make sure everyone understands the purpose of the meeting. Witnesses probably won't be asked, or if asked will be instructed not to answer, but it is still reassuring for them to know that the goals are absolutely legitimate. Even if those goals were to be disclosed in testimony, it would not sound at all nefarious. For example, according to the witness preparation Standards and Practice Guidelines of the American Society of Trial Consultants, the goal of witness preparation is "To increase witnesses' understanding, comfort and confidence in the process of testifying for deposition or in court, and to improve witnesses' ability to truthfully present testimony in a clear and effective manner." Nothing wrong with that. Most jurors, if they were ever to be on the stand, would probably want access to the same orientation.

    For the Witness: Know What to Say If Asked (and Where to Stop)

    The question, "What did you do to prepare for your testimony?" is a predictable one, especially for deposition. Follow your attorney's lead on how to answer it. Many will say that the correct answer is simply "I met with my attorney," and to answer no further questions on the matter at your own counsel's instructions. Others will say that the follow-up question, "And who else was present at that meeting" is a legitimate one. Depending on the witness's recollections, the correct answers might range from, "some members on my attorney's team," to "an advisor who was working with my attorney." In no case, should the inquiry extend beyond that to the structure or the content of the meeting. But witnesses should know that the purpose is to review testimony and to familiarize oneself with the norms, not to "rehearse," and not to be "coached." Beyond the semantics, and even the ethics, good attorneys and witnesses know that woodshedding does more harm than good, and can crush a witness's confidence.

    Attorneys prepare, judges prepare, and even the clerks and the bailiffs prepare for their respective roles. How unfair would it be if those on the stand -- the ones who are supposed to be the sources for all the facts -- were the only ones not permitted to engage in effective and informed preparation?

    At this stage, witness preparation is not novel, and should not be much of a concern. And there is some hopeful evidence that this perspective is shared by potential jurors as well. A study (New, Schwartz, & Giewat, 2006) looked at the opinions of 500 jury-eligible respondents and found that nearly three-quarters believed that it's a good idea to prepare witnesses to testify, with less than 15 percent believing that it showed the witness had something to hide. The more the public understands about these services, the better. So attorneys and consultants do well to promote that understanding, even if we have to do it one witness at a time.