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Ibarra Reveals Limits to Woodshedding of Witnesses

By Teresa Rider Bult, Litigation News Associate Editor – November 4, 2009

While it is a common practice for attorneys to spend time preparing their witnesses prior to deposition or trial, Ibarra v. Baker [PDF] has sent a strong reminder that such preparation has its limitations.

Background of the Case
In Ibarra, the Fifth Circuit considered the issue of how far is too far when it comes to overly coaching, or “woodshedding,” witnesses.

The court upheld an award of sanctions against attorneys representing law enforcement officers in a Section 1983 action, where the defense asserted it had a reasonable suspicion for detainment of the plaintiff. The lower court had found the attorneys improperly instructed their expert witness, Albert Rodriguez, a commander with the Texas Department of Safety, to improperly alter the law officers’ substantive testimony.

The district court found the attorneys had essentially planted two new “terms of art” into the litigation via their preparation of Rodriguez: “retaliation” and “high crime area.” The witnesses all began using these terms as part of their testimony late in the litigation, after the attorneys met with Rodriguez and subsequently with the other officers.

All witnesses began to testify that the reason they had reasonable suspicion for the detainment of the plaintiff was because the plaintiff fled into a high-crime area and because they feared the plaintiff’s photography of the officers’ premises search was done in retaliation for the search.

The suspicious timing, combined with evidence of one page of notes taken by one of the officers defining high-crime area and other key terms, led the lower court to find the expert’s and attorneys’ conduct was sanctionable.

On appeal, the Fifth Circuit acknowledged that the evidence of the attorneys’ involvement in this chain of improper coaching was “a bit scant” but refused to overturn the lower court decision because there was no evidence it was “mistaken.”

A Dirty Little Secret?
“This case is a good reminder to attorneys that witness preparation, ‘woodshedding,’ as it once was called, has limits,” says Roberta K. Flowers, St. Petersburg, Florida, cochair professionalism subcommittee of ABA Section of Litigation’s Ethics & Professionalism Committee.

“Witness preparation is a bit of a dirty little secret in the U.S. legal community. We attorneys know we have substantial leeway in preparing our witnesses, and because it occurs in the office instead of in the courtroom or even deposition room, it is hard to prove when attorneys overstep their bounds,” Flowers says.

Even so, “the end result of any preparation must be the witness’s own words, not words we have put in their mouths. We must always be mindful of our ethical duties not to deceive,” Flowers advises.

Dori Ann Hanswirth, New York, cochair, Section of Litigation’s Trial Practice Committee, agrees with this premise but not the terminology. Instead, Hanswirth says she believes that witness “coaching” is something ethical lawyers do notdo.

“I don’t buy into the suggestion that unethical coaching is a dirty little secret, and we have to be careful by the use of such terms that we do not send a message that such conduct is widespread and accepted with a nudge and a wink,” Hanswirth cautions.

Witness Preparation
Others see the Ibarra court as the one overreaching, especially considering the court acknowledged the scant evidence. “There is nothing wrong with coaching witnesses, including introducing them to legal terms and court procedures,” says Mark Davidson, Seattle, cochair of the Section’s Business Torts Committee.

“As long as attorneys emphasize that the witness must tell the truth, it is both ethical and acceptable for them to use a preparation session to familiarize the witness with legal concepts and help the witness articulate the facts,” he says.

“Preparing witnesses to testify is an important part of the obligation to effectively and zealously represent our clients,” Davidson notes.

Failure to properly prepare your client or witness to testify does the client a disservice, Davidson opines. “Before testifying, every witness should have the opportunity to understand the issues and the deposition or trial process, to review documents [that] he or she may be shown during testimony, and to refresh [his or her] memory,” he says.

Permissible Conduct
So how far is too far? Clearly, any attempt to elicit false testimony is prohibited. One court noted, “even the most inexperienced lawyer knows that he or she should not elicit false testimony.” In re Peasley [PDF].

Beyond that, as one commentator noted, “the line between permissible conduct and impermissible coaching can be ‘like the difference between dusk and twilight.’”

Even so, the advice provided by one court [PDF] more than a century ago may still be the best advice provided to date: “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 teach him what he ought to know.’”

While the absence of such sanctions cases is more notable than the cases themselves, the Ibarra case is certainly not the first attorney “woodshedding” case to receive national attention.

Other Cases Involving Sanctions
In March 2006, attorney Carla Martin was sanctioned by a district court in Virginia for providing copies of the trial transcript to pending witnesses in the al-Qaeda conspirator Zacarias Moussaoui trial, in violation of ethical rules and an explicit court order.

In October 2008, a judge kicked attorney Bob Bundy out of the courtroom for nodding his head at his client during the criminal trial of Senator Ted Stevens (for improperly accepting more than $250,000 in gifts and home renovations).

The improper coaching cases that most often arise involve documents (e.g., a talking points memorandum used to prepare for deposition or trial) and/or nonclient witnesses. Notably, in both of these instances, the communication by the attorney was discoverable and not protected by the attorney-client privilege.

Lessons Learned
“Unfortunately, the lesson learned through these cases may be that attorneys should not do something careless and should try harder not to get caught, which is contrary to our role as facilitators of the truth,” says Joan Archer, Kansas City, Section Expert Witness Committee cochair.

The Ibarra result could have been avoided had the attorney spoken directly to the officers, rather than through their experts, therefore protecting the communication, Archer notes.

“Of course, even this witness preparation must be done within the bounds of the law,” she reminds.

Every attorney should begin the witness preparation session by clearly saying, “When testifying under oath, you must tell the truth. Nothing I say in this preparation session is intended to instruct you to the contrary,” Davidson advises.

The reality, however, is that what is said after those words can shape a witness’s testimony.

Keywords: Trial procedure, expert witnesses, witness preparation, attorney sanctions

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