While some lawyers skimp on their expert witness testimony preparation, which can be an ethics violation on its own, other lawyers take the “preparation” too far. Furthermore, the practice of coaching witnesses during testimony that goes so far as to be essentially manipulating the witness’ conduct during the testimony is unethical.[1]
Preparation
During expert witness testimony preparation, retaining counsel may and should instruct the witness to answer questions honestly, remind the witness they will be under oath, explain the lines of questioning the witness can expect, review the facts of the case, review the witness’ opinions, etc. It is unethical, however, for an attorney to instruct the witness to lie or to not appear for a properly noticed deposition.[2]
Influencing Testimony
The recent increase in remote depositions or deposition taken via zoom where the opposing attorney is in a location separate from the witness and the retaining attorney has given rise to occasions of misconduct by retaining attorneys. If, for example, the witness and his/her retaining attorney are in the same room, but the camera is only focused on the witness, retaining counsel has the opportunity to hear the question and then potentially instruct the witness on how to answer without being seen on camera. Or, the attorney could use text messages or the chat feature in the video conferencing platform to instruct the witness on how to answer. This behavior is unethical and could result in sanctions for the attorney.[3] Even if the attorney isn’t blatantly instructing the witness on how to answer questions, conduct such as winking at the witness, kicking the witness under the table, or using hand gestures is also unethical and could also result in sanctions for the attorney.[4]
Objections During Testimony
Attorneys are not allowed to utilize speaking objections during testimony. That is to say, attorneys cannot state more than the objection and the grounds for the objection in an attempt to coach the witness in how to answer the question posed. Objections and the grounds therefore, however, can be a clue to the witness as to how to potentially formulate a response. For example, if the objection is based on the question being posed in a compound manner, and retaining counsel objects to the form of the question, the expert witness may choose to answer by stating that he/she doesn’t understand the question or needs the question to be broken up into smaller questions.
Conclusion
Attorneys are under ethical obligations when it comes to expert witness testimony preparation and during testimony. When an attorney tries to usurp the witness’ independence, they have gone too far. During testimony, an expert witness is under oath and therefore should be giving truthful answers they have come to on their own.
About the Author
Kelly J. Wilbur, Esq. is an expert witness trainer and consultant at SEAK, Inc.. She has assisted and taught numerous expert witnesses through SEAK seminars and one-on-one training. She was an insurance defense and commercial litigator for five years where she regularly worked with and against expert witnesses in wrongful death, personal injury, premises liability, construction defect and patent cases. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. She may be contacted at 781-491-6802 or kelly@seak.com.
[1] American Bar Association Formal Opinion 508, The Ethics of Witness Preparation, August 5, 2023.
[2] MODEL RULES OF PROF’L CONDUCT R. 3.4(b).
[3] In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022) (suspending lawyer for 60 days by consent where lawyer used chat feature to instruct client during cross-examination at trial using GoToMeeting platform, in violation of Arizona Ethics Rule 3.4(a) ER 8.4(c), and ER 8.4(d)).
[4] See e.g., Vnuk v. Berwick Hospital Co., No. 3:14-CV-01432, 2016 WL 907714 , at *4 (M.D. Pa. Mar. 2, 2016) (finding lawyer violated court rules by conferring with witness over break, passing notes and whispering during deposition).