Litigation often turns on the testimony of witnesses. Preparing them is a central focus of attorneys, whether witnesses are parties, fact witnesses or experts. But preparing them before their testimony or conferring with them during breaks in their testimony is a full of ethical traps. Expert witnesses are paid for their time, not their testimony. Though they may be engaged to support a particular view of the facts, there are real limits to how experts can be coached. There are also real limits to how attorneys can prompt fact witnesses, for instance to “not remember” unfavorable facts. There are also significant ethical challenges involving how to handle inadvertently produced privileged documents and when testimony goes in a sharply unexpected direction. This program will provide you with a practical guide to the ethical issues and traps of working with witnesses.
Handout Materials will be emailed to you prior to the seminar
1.0 MCLE Credit Hours, including 1 ethics hour
• Ethical issues in preparing and examining witnesses for litigation
• Dishonest witnesses – what are your obligations to the court and your client?
• Understanding the essential difference between paying witnesses for their time versus their testimony
• Conferring with witnesses during deposition breaks and the limits of what you advise
• Prompting a witness to “not remember” unfavorable testimony
• How to handle the inadvertent production of privileged documents
• Drafting witness affidavits without interviewing the witness
John M. Barkett, Shook, Hardy & Bacon, LLP – Miami
Bruce Green, Fordham Law School – New York City
Paul Mark Sandler, Shapiro Sher Guinot & Sandler, PA – Baltimore