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.