Ethical Witness Preparation

When you are preparing a witness to testify, there are certain things you can and can't encourage the witness to do. In preparing a witness to testify, a lawyer is permitted to invite the witness to provide truthful testimony that is favorable to the lawyer's client, as long as the lawyer does not encourage the witness to deviate from the truth. Both the witness and the lawyer share a responsibility for ensuring the truth of the witness's testimony. This means that the witness should never testify to something he or she does not believe to be true. Additionally, as a lawyer, you should never permit the witness to testify to what you, as the lawyer, believe to be false.

The Restatement of the Law Governing Lawyers provides that as long as it does not elicit false or misleading testimony, preparation consistent with a lawyer's duties to a client and to the court may include:

1. Discussing the role of the witness and effective courtroom demeanor
2. Discussing the witness's recollection and probable testimony
3. Revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness's recollection of events in that light
4. Discussing the applicability of law to the events at issue
5. Reviewing the factual context into which the witness's observations or opinions will fit
6. Reviewing documents or other physical evidence that may be introduced
7. Discussing probable lines of hostile cross examination that the witness should be prepared to meet
8. Rehearsing the witness's testimony and suggesting choice of words
From Preparing Witnesses: A Practical Guide for Lawyers and Their Clients, Second Edition
by Daniel I. Small