Thank You For Not Coaching Your Witness

We should be able to take it for granted that the other side will not coach its witnesses.  But this is not an ideal world.  A couple of years ago, for example, police officers in D.C. accused prosecutors from the Office of the Attorney General with having asked them to lie on the stand in a DUI case.  (The officers later sued the city for whistleblower retaliation.)

That’s why I don’t take anything for granted.  That’s why I thanked the prosecutor after a recent case in which his officer had clearly not been coached.  “The officer tells me what happened,” the prosecutor told me.  “Then I put him on the stand.”  But he did not seem surprised that I brought this up.

I myself have learned from bitter experience not to over-prepare my own witnesses. This is what the rules on professional ethics dictate.  It is also self-interest.

The client will usually tell me his version of events a couple of times during the early stages of the case.  If it becomes apparent later that the client may have to testify, I have him run through the story one last time in narrative form.  Assuming I am confident there will no surprises, I try to avoid interrupting him at this point to seek clarification.   And I try to do it only once.

A big part of this is that I don’t want to signal to the client what I think is important. I made the mistake early on of tipping my hand to a fairly unsophisticated client:  I let him know that I particularly liked one portion of his narrative.  These were then virtually the first words out of his mouth. Another time a client realized I liked the number ten in relation to some material fact.  This number then became twenty at trial.

I understood this:  Both clients were nervous.  The stakes were high.  And they wanted to do a good job.  But the results in both cases were disastrous.

The best testimony – the most credible testimony – is natural and unrehearsed.  People don’t speak in perfect sentences.  They don’t tell smooth narratives that cover all the right bases.  Sometimes people need to be interrupted and re-directed.

Tell the truth, I tell clients, just like you told me now.  Tell the truth even if you think it might hurt our case.  Believe me, I wouldn’t put you on the stand if I was worried about that.  And just answer the question I have asked you.  Let me worry about whether or not we have covered everything we need to get in.  I will keep asking you questions until we do.