Focus on Ethics & Civility, 1021 UTBJ, Vol. 34, No. 5. 57

Authorby Benjamin Cilwick and Keith A. Call
PositionVol. 34 5 Pg. 57

Focus on Ethics & Civility

Vol. 34 No. 5 Pg. 57

Utah Bar Journal

October, 2021

September 2021


by Benjamin Cilwick and Keith A. Call

"[The 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 re Eldridge, 82 N.Y. 161,171 (1880).

An his 1850 novel, The Ways of the Hour, James Fenimore Cooper wrote one of the first mystery novels that revolved almost entirely around a courtroom murder trial. Cooper used the novel to, among other things, express his discontent with corruption among New York's courts and juries. He is believed to be the originator of the phrase "horse-shedding," a reference to the practice of attorneys who lingered in carriage sheds near the courthouse in White Plains, New York, to rehearse their witnesses. See James W. McElhaney, Mcelhaney's Trial Notebook, 100 (4th ed. 2005). Today, of course, the term "horse-shedding" can still carry negative connotations, suggesting that the lawyer is trying to manipulate a witness's testimony before the witness actually testifies.

Conscientious lawyers aim to advocate zealously for their client within the bounds of ethical and professional duties. But vigorous representation can tempt the unscrupulous to betray those duties. Witness preparation in particular harbors a tension between duties to the client and duties not to advocate falsehoods or to mislead the tribunal. The over-zealous might seek to improperly influence testimony through coaching. Yet legitimate witness preparation is indispensable for effective advocacy. It would be foolish, and likely a dereliction of duties to the client, if a lawyer failed to prepare witnesses in some fashion. The "failure to prepare witnesses for depositions is a genuine professional disservice." Id. So, it is important to distinguish permissible preparation from improper coaching. That is no small task.

The Good and the Bad

Lawyers' obligations to be truthful and honest extend beyond their own statements and omissions. In the context of witness preparation, lawyers must not attempt to lie or dishonestly advocate via witnesses. Lawyers are barred from "counselling] or assist [ing] a witness to testify falsely." Utah R. Pro. Conduct 3.4(b). Likewise, " [t] he lawyer must not allow the tribunal to be misled by false statements of law or fact or...

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