By Edward McIntyre
Duncan interrupted, “Uncle, can my mentee, Tim, ask a few questions?”
Macbeth waived them to his conference table. “He can and he may. Welcome. Let’s have Sarah join us.”
With everyone seated, Macbeth turned to their guest, “Tim, ask away.”
“I’ve got my first trial —”
Sarah smiled, “Congratulations.”
“Thanks. Anyhow, I’ve got questions about preparing witnesses.”
Macbeth nodded, “Please, just ask.”
“So, the first involves my client. She keeps asking: ‘What do I have to say? What do we need to prove?’”
“Any other witnesses?”
“Not a client, but he has an important role. Nice guy, but none too smart. He’s asking: ‘What’s important? What do you want?’” Tim paused, then asked, “How do I answer? I’ve got to get them ready for trial, don’t I?”
“Your last question is the easiest. Of course you do. Common sense, competence, respect for the court and the judicial process all demand it. You touched the right issue — what may you say to prepare them to testify.”
“I don’t want to cross the line, but I still want to do what’s best for my client.”
“Perfect. Let’s consider the non-client witness first.”
“Great,” Tim said, as he flipped open his computer.
“We have a simple ‘Instruction for Witnesses’ we’ve prepared,” Macbeth explained. “You’re welcome to use it. The first item, in bold, capital letters: ‘Remember Your First and Only Duty Is to Tell the Truth.’”
“Wow.”
“Opposing lawyers would ask: ‘Did Macbeth show you anything?’ Our witness would pull out the instructions. With the ‘tell the truth’ admonition prominent. Juries took notice. Once word got out, lawyers stopped asking.”
“Nice.”
“Tactically, yes. It also underscores our obligation not to counsel or assist a witness to testify falsely. Our duty of candor to the tribunal. But keeping your witness focused on what you know is important, without suggesting how he should testify. It’s a fine line.”
“Any advice?” Tim asked.
“First, don’t answer his questions. Instead say, for example, ‘What’s important is you tell the truth. That’s all we need. All I want —’’’
“OK.”
“Then work through your outline, but don’t show him. Use the questions you’ll ask to elicit facts that build your case. If he strays — spins off on a tangent — use questions to pull him back. Don’t tell him the answer you’re looking for. It’s tough to make your questions sound neutral when you know what you want, but patience pays.”
Duncan interrupted, “If he is asked on cross, ‘Did you tell him anything?,’ the answer will be, ‘“He told me to tell the truth. Then he just asked me some questions.’”
Sarah added, “Hearing the same questions you used to prepare him should make him more comfortable.”
Macbeth picked up the conversation, “Now let’s talk about your client.”
“Great,” Tim resumed typing.
“First, I recommend the ‘tell the truth’ admonition. Repeat it, even though your opponent can’t ask her what you discussed and she can’t volunteer it without opening the door.”
“Got it.”
“The next part’s more difficult.”
“How so?”
“Your client has a right to know what you have to prove to meet her burden. It’s her case. She can ask where each bit of evidence will come from. In fact, as part of our duty not to continue an action without probable cause, we all should ask those questions while we do discovery and prepare our cases.”
“I have been.”
“Fine. Your client has a right to know what you know.”
“I’ve kept her pretty well-informed all along.”
“Wonderful. It is still delicate because you’ll identify evidence the case needs, but you have to keep her focused on what she can candidly provide.”
“OK. But —”
“It’s only natural for a client to want to help her case. Our role is to make sure her story is true and that she doesn’t unintentionally hurt herself.”
“What if she wants to testify about something I know is false? I don’t think it’ll happen, but —”
“First, try to talk her out of it. One, it’s wrong. Two, she’ll likely get caught on cross-examination, killing her credibility on everything she’s said. Finally, tell her you may refuse to offer evidence, even from your client, if you reasonably believe it is false.”
Sarah added, “The exception is a defendant in a criminal matter. She doesn’t fit.”
“Thanks, Macbeth. Everyone. It’s been very helpful.”
All three chimed in, “Good luck with your trial. Break a leg!”
Editorial Note: Macbeth’s advice referred to Rules of Professional Conduct, Rules 1.1 (competence); 1.4 (communication); 3.3 (a)(3) (candor to a tribunal); 3.4 (c) (fairness to opposing party and counsel) and Business and Professions Code section 6068, subdivision (d) (mislead a judge).
Edward McIntyre is a professional responsibility lawyer and co-editor of San Diego Lawyer.