The Ethics of Witness Preparation

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 201-207

The question of what constitutes ethical witness preparation is one that, as

the saying goes, has generated much heat but little light. A few academics

have taken the extreme route, arguing that any witness preparation distorts

the search for truth, and is therefore improper. See, e.g., R. Wydick, The

Ethics of Witness Coaching, 17 C L. R. 1 (1995) (“If a trial is

supposed to be a search for truth, why then are lawyers allowed to inter-

view and prepare witnesses?”)

However, with all due respect to the Ivory Tower, that is an absurd

position. Witness preparation is all about leveling the playing eld: the

questioner is experienced in this strange and unnatural process, skilled in

turning every careless word to his or her advantage, familiar with all sides

and all aspects of the case, and perhaps most importantly, infallible: no

matter how many mistakes the questioner makes, it doesn’t matter. The

questioner is not under oath. Yet just one mistake by a witness can severely

damage his or her credibility or case, and can live on forever. What could

be more unfair? How can lawyers fulll their obligation to represent cli-

ents “zealously within the bounds of the law” (Model Code, EC7-1), and

allow this to happen? They cannot. The great legal scholar John Wigmore

201

Chapter 34

The Ethics of Witness Preparation

“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, 37 N.Y. 161, 171 (N.Y. 18 80 )

Small_PrepWitness_20140403_13-27 Second Pass.indd 201 8/12/14 10:20 AM