Ethical Witness Preparation

Daniel I. Small, provides a list of guidelines for ethical witness preparation in his book, Preparing Witnesses: A Practical Guide for Lawyers and Their Clients, Second Edition, available for the ABA GP/Solo division.

He reminds us that the Restatement of the Law Governing Lawyers provides that as long as it does not elicit false or misleading testimony, preparation must be consistent with a lawyer's duties to a client and to the court.

• Such duties may include:
  

• Discussing the role of the witness and effective courtroom demeanor
• Discussing the witness's recollection and probable testimony
• 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
• Discussing the applicability of law to the events at issue
• Reviewing the factual context into which the witness's observations or opinions will fit
• Reviewing documents or other physical evidence that may be introduced
• Discussing probable lines of hostile cross examination that the witness should be prepared to meet
• Rehearsing the witness's testimony and suggesting choice of words

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