(Editor’s Note: Litigation is published by The Journal of The Section of Litigation, American Bar Association. This volume was subtitled “Morals and Manners.”)
A Texas tort lawyer recently won an $8.5 million verdict for the owner of a deceased stud bull, felled midstream of an enviable career by cruel circumstance and an apparently lethal pesticide. When I inquired of the attorney how he had persuaded the jury to return such a large award, his answer seemed particularly germane to the topic of preparing witnesses. He draped his arm over my shoulder, kicked the dirt with his pointy-toe boots, and said, apparently without embarrassment, “Well, boy, I just humanized the bull.”
Little of what we do as trial lawyers raises profound moral issues. Voir dire, opening statement, cross-examination and closing argument seldom involve unsettling ethical problems, unless we strive to ferret out philosophy from under every legal rock — an exercise better left to monasteries than to courthouses.
It is in the privacy of our offices, preparing parties and witnesses to testify under oath, that we can affect the integrity of the judicial system. There we find our raison d’etre: winning, and the lengths to which we will go to win.
The problem is perjury. A state court judge cogently wrote in 1913, “The prevalence of perjury is a serious menace to the administration of justice, to prevent which no means have as yet been satisfactorily devised.” It is easy to treat a trial as a blank slate upon which to write the dialogue, and in courthouses across the country there are lawyers known for doing just that.
All of us swear eternal hostility to perjury, but it is facile to dismiss the subject without examining its causes and determining if we contribute to its occurrence.
Let me be clear: I do not condone tampering with testimony or mean to imply that many of our colleagues do. But I do suggest that, sooner or later, most of us trim the sail of the testifying clients a bit too much. It is one thing to say, “No perjury,” and yet another to avoid it always or to encourage it never. In neither case do we necessarily suborn the lie. For instance, who among us has not warned the client, “Before you tell me your side of the story, let me tell you what the law is in this area,” or, “If you say that, you’ll lose.” Or who, wincing at his client’s explanation, has not reminded the client, “Well, that’s not how your boss remembers it,” or, “Aren’t you really telling me… .”
It is at those moments, draped with the mantle of the Canons of Ethics and its injunction to represent the client’s position zealously, that we are on the edge.
By most standards the law lags 50 years behind the rest of society. To urge that ours is a conservative profession understates the case. The lawyer who exhibits creativity, the basic right-brain personality, who occasionally sings his closing argument or claims television caused his client’s criminal behavior, is soon back to pipefitting, or worse, remains in the profession. Cross-examination is hardly a science lab, and one rarely hears a closing argument described as a breakthrough. But in preparing witnesses for trial, we are on the cutting edge, where we are forced to consider questions with profound implications for all society.
My conclusion — based solely on experience — is that we do not do badly, and not necessarily because of our sterling moral fiber. Practicalities help to keep us from pushing too far. In the first place, you can get, well, caught.
The criminal law is filled with instances of the convicted client who is visited at the Federal Hotel by agents of the Federal Bureau of Investigation and asked, did his lawyer do anything wrong, like trying to get him to lie on the stand? When turning on the lawyer becomes the fast track to parole, you should sooner rely on the kindness of strangers than on the loyalty of the jailed client. Nor will you be saved by handling only civil cases. Increasingly there are instances, especially in actions brought under the Racketeer Influenced and Corrupt Organization Act, where judges ship deposition testimony to the U.S. Attorney’s Office for investigation of all manner of crime, including perjury.
Another consideration in not eliciting this sort of testimony is that it can be exposed. Cross-examination often leaves false testimony in shards, like a pane of glass dropped from a third-story window. Moreover, jurors frequently knock off the lies, if not from the facts, simply from the feel of the case. Juries hate liars, and the liar’s side, once exposed, is going to lose.
So the integrity of trial law rests both on common sense and on the ethical standards of its practitioners. Now there’s a chilling thought. Isn’t the law practiced by human beings? Didn’t Shakespeare first raise the issue in The Merchant of Venice when he asked, “Hath not a lawyer eyes? Hath not a lawyer hands, organs, dimensions, and incredible overhead?” The point is that the overall admirable behavior of trial lawyers can be understood fully only if you consider that the penalty for getting caught is indictment and possibly loss of you license.
The American Bar Association’s Canons of Ethics are clear. Ethical Consideration 7-26 codifies an answer to what has to be one of the most difficult moral issues faced by any profession: The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.
The bright light of this Ethical Consideration grows dim in the office as you stare across your desk at the client, listening to him pour out what may be a completely fabricated account of the facts of the case. This problem is acknowledge in other, less wholly idealistic sections of the Canons. For instance, Ethical Consideration 7-6 discusses the perplexing problem of developing and preserving evidence related to the client’s state of mind and intent. When the lawyer is not certain about the state of mind, “he should resolve reasonable doubts in favor of his client.”
HERE ARE THE QUESTIONS
The questions that arise from this rule are endless. Is judging the client the proper role of the advocate? What do we do if we disbelieve the client? And what if we cannot disprove that which we do not believe? What if the untruth is unarguably irrelevant? How much of our soul do we owe the client in resolving that “reasonable doubt?” Are we to withdraw from representation based on a hunch? What if the client has already paid the fee? What if the doubt develops the day before trial? And what do we do about the lawyer on the other side whose definition of reasonable doubt may be far different from our own; or, what about the lawyer on the other side who we know will tell his client to lie?
Your client may get on the stand and start lying. If he does, the next step is dictated by an American Bar Association procedure outlined years ago and recently reaffirmed in a Supreme Court decision, Nix v. Whiteside 475 U.S. 157, 89 L.Ed.2d 123, 106 S.Ct. 988 (1986). The lawyer is to go to chambers, explain the dilemma to the judge, and ask leave to withdraw, which may or may not be granted. Being forced to sit there while a client lies or, worse, being incorrect about whether he is lying are only two of a parade of infinite horribles that immediately suggest themselves. There is also the dread possibility that the client is president of your most lucrative corporate client. But that is irrelevant, isn’t it?
Only those who consistently stake out a superior moral position can resolve the issues easily. That is why, with little guidance but our own godly nature, we should all be grateful to my friend the Texas tort lawyer. Seldom is the Gordian knot so easily undone, rarely is the thorny philosophic issue so quickly unraveled as in his synthesis: Our job is to humanize the bull.
This is not to imply that the trial lawyer should avoid answering these questions because they are difficult. It is to say, however, that much of what creates philosophical dilemmas is taken from the hands of the lawyer who follows the rules, and not just those found in the Canons of Ethics. While no one would argue that the Canons were drafted with the intent to suborn perjury, they nonetheless grant us wide latitude in putting together our cases. In essence, they urge us to leave justice to judges, to represent our clients vigorously, and to win cases. It is easy to rationalize questionable trial behavior if you drag down the Canons at 2am and read them through the enlightening haze of brown whisky. The possibility that a trial will reveal the truth or something that closely resembles it results, not from a course in professional responsibility, though that helps, but primarily from the ethical beliefs of the lawyer and his willingness to live them out.
There are lawyers who refuse to woodshed witnesses at all, who just throw them up there on the stand and let them tell their story. Their clients most often are referred to as “appellants.”
It is axiomatic. Everyone who testifies has to be woodshedded. It is probably unethical to fail to prepare a witness, and it is undoubtedly cruel to subject anyone to cross-examination without preparation. The unrehearsed witness can deal a lethal blow to an otherwise winnable case.
But sooner or later we all risk putting a client on the stand without sufficient preparation. Here I share the rarest of lawyer anecdotes, a story about a case I lost.
The trial had seemed unwinnable from the start. My client, an addicted physician, was accused of three hand-to-hand sales of cocaine; several eyewitnesses would testify about the sales. In defense of myself and the ultimate verdict, the client was no, er, gem. In addition to his having shown up in court with a telltale trace of white powdery substance dangling from his iridescent nose, proof was offered that he once had fallen asleep on a patient while taking the patient’s pulse.
We worked on his testimony for hours and, surprisingly, he turned out to be a pretty good witness during the guilt/innocence phase of the trial. The jury almost deadlocked before finally convicting him. I had some hope that they would grant him a probated sentence during the punishment phase of the bifurcated trial. My only advice, given his earlier, stellar performance, was to answer “No,” and nothing more, when I asked him if he had ever been convicted of a felony in this or any other jurisdiction. That was the way to establish his eligibility for probation.
Here is the colloquy that followed:
Q: Have you ever been convicted of a felony in this or any other jurisdiction?
A: Mr. Berg, I have never been in trouble in my life. I have a fairly decent reputation for truth and veracity, nothing to write home about, but believe me when I say that I tried to stage a heart attack, in fact, fervently prayed for one that moment. The prosecutor was scarcely able to conceal his ecstacy during cross-examination.
Q: Never been in trouble? Didn’t you turn a 14-year-old girl on to cocaine?
A: Sir, that is a lie! She was 16.
Exit here, stage left, for the Texas Department of Corrections, to return in five years.
Currently on appeal, that case haunts me. The client had come within inches of the only success he could possibly have enjoyed. Absent my misplaced faith in his intelligence, he might have gotten probation. Thus, I drew a lesson. Especially in criminal cases, always remember that the client got this far because of his own intelligence. During trial, rely on your own.
The first rule, then, is to woodshed in every instance, rehearsing both direct and cross-examination. Almost invariably, the properly prepared witness warms to the task when finally placed under oath. Direct becomes more concise and vivid; cross is seldom as bad as anticipated.
There is an important, if obvious, caveat for this sort of pretrial preparation. Know when to stop. Over-rehearsing robs testimony of credibility; nothing is more devastating than memorized answers delivered in an emotionless monotone.
Nor should the lawyer whose client is superb in the office on Saturday before trial, blubbering out his remorse over what he has done or outlining in exquisite detail the ways in which he has been defrauded, be entirely sanguine that the same compelling performance will be repeated in the courtroom. It often happens that the client clams up or, all too frequently, that he takes tranquilizers and testifies like a zombie when he gets on the stand.
There are other general ground rules, none of which is etched in stone. Ideally the rehearsal should take place a few days before deposition or trial. This creates a more relaxed learning environment for witnesses, who are generally unfamiliar with courtroom procedures and justifiably concerned about how they will perform. As you go over the case, bear in mind how a judge or jury will react, and bear down on the ultimate issues.
Most important: Forget what the client has at stake and remember that your reputation is on the line here. Some creep from another law firm is trying to beat you personally, ruin your career, and molest your children. More than any other single factor, what you have going for the client is your own Swiss-cheese super ego, your own inestimable opinion of yourself, and an insatiable desire to win. None of this hurts the client; it just looks a little odd in print.
Therefore: Take command immediately. You know more than clients do. Caution them that what they say is frequently less important than how they say it, and if they lose their temper, they lose, period. Instruct them that after they are passed to opposing counsel their tone of voice should remain the same; it is “Yes, Sir” and “No, Sir” to both sides.
Warn them that their appearances are vital to the jury, that they must dress unpretentiously and leave expensive jewelry at home. Remind them that their decorum will be monitored by the judge and jury in the courtroom and during recess and that a trial must be conducted in a sober atmosphere if they want to create the right impression. Tell him to get a haircut or her to get her hair done, and if you want, dictate a style. (Buy yourself a David Boies $125 polyester suit. You heard me: polyester.) Tell them not to tranquilize, speed up, or otherwise medicate themselves during trial. Gum chewing, smoking, and candy sucking are better left to the cafeteria. If they object on the grounds of superficiality, invite them to hire a philosopher.
Your most important instruction to the client is to listen to each question carefully and answer only what is asked. There is an old trick designed to teach the uninitiated how to answer directly. After cautioning the client to answer only the question asked, nonchalantly ask if he has a watch. Ninety percent of the time you will get the answer, “Sure, it’s 3:15.” At that point the gifted practitioner, asserting his superiority, pounds on the desk and screams, “Listen here, buddy, I didn’t ask for the time of day. I asked if you have a watch.” Usually the client suffers an immediate epiphany; the answers become progressively less expansive. Thereafter, each time the client slips up and begins to talk too much, slam your hand down on the desk. Once the actual deposition or trial testimony begins, the client will be gun-shy, hearing the echo of the irate attorney’s fist as it slams into the desk. It really works.
The general rule then is to impress on the witness not to volunteer an extra word to opposing counsel during cross-examination. I warn my criminal clients that for each extra word they utter they can add a year to their sentence, if they are convicted. The civil plaintiff need only be told that each extra utterance costs $100,000 out of the verdict.
As with virtually every other inviolate rule of trial work, there are exceptions to the minimalist credo. The first comes when it is absolutely necessary to explain an answer. The lawyer and client should establish in advance those areas that need to be expanded upon, especially when a simple answer would be misleading or harmful. However, clients sometimes become so anxious to explain their position that they forget the simple preface of “yes” or “no” that allows for the fuller testimony. Warn them that their failure to answer the question directly before the explanation can lead to abomination by the judge to be responsive, and that if the warning is repeated, the jury will think the witness is hiding something.
The second exception occurs when the door is opened by opposing counsel. This exception is especially valuable when key testimony is excluded by a motion in limine or other adverse ruling. Often opposing counsel will open the door to the evidence by careless cross-examination. Once the question is asked, you have two choices. You may develop the exposed issue on redirect, or, preferably, the witness may “spontaneously” get into testimony you have wanted to bring out all along.
In 1979, I defended a case in which a wife was accused of shooting and then dismembering her husband after he had held her hostage for three days, threatening her life and the lives of her children. The judge granted the prosecution’s motion in limine and excluded expert psychiatric testimony about the battered-wife syndrome. His theory was that the evidence of the beatings spoke for itself and that no psychiatric testimony was admissible because we did not rely on insanity as a defense. The psychiatrist’s testimony was central to our defense because of the particularly heinous nature of the crime and the accused’s apparent failure to retreat before the shooting, a prerequisite for a claim of self-defense. The psychiatrist was prepared to testify that my client, like all battered women, had developed a kind of psychological bondage that would not allow her to leave under any circumstance.
It was during the defendant’s testimony that the prosecutor blundered. After fighting for hours to keep the psychiatrist off the stand, he asked these questions.
Q: Let’s see. You first shot him, the cut his body into five pieces, put them into the trunk of your car, and drove him all the way to your parents’ home in California. Is that correct?
A: Yes, sir.
Q: He kept you in your house for three days and nights prior to this killing?
A: Yes. And he threatened to kill my children.
Q: You have a telephone there, I presume?
A: Yes, of course.
Q: And in three days and nights on which you claim you were tortured and beaten it never occurred to you to pick up the phone and call the police?
A: Of course it occurred to me… .
CAVEATS FOR PREPARATION
Emboldened by her failure to have capitalized on his first open-ended question, he then moved closer to her, shouting and waving a picture of her husband’s body: “You didn’t leave because you didn’t want to, did you? You enjoyed every minute of what you did, didn’t you? It was far easier than getting a divorce, wasn’t it?”
He turned to his seat, not really expecting an answer. The client simply said, “It’s not fair for me to try to answer this by myself. I know I was chained to that man, just like the abused child goes to the parent who beats him. The only person who can fully explain this answer is my psychiatrist, and if you really want the answer to the question, you ought to let him testify instead of objecting.”
The judge agreed, called the testimony invited, and let the psychiatrist take the stand. The jury acquitted in less than two hours. My client and I had rehearsed the answer the night before; I had told her to wait for a legitimate opening and to hope it would come.
There are countless other caveats about effective preparation of witnesses. One is that the pretrial work never ends, even when the trial begins. For example, parties and those witnesses who are allowed to sit in the courtroom should profit from what they hear. During recesses and at night, go over the main areas of concern in the light of the testimony elicited. Another caveat is to make the client aware of what is going to happen after you announce “ready,” even to the point of outlining legal arguments you expect and their significance.
A friend in Washington, lawyer Liebman, counsels his clients to anticipate where the attorney is headed with his questions. This is good advice so long as the witness does not try to prove he is smarter than the attorney. He probably is, but the courtroom is not the forum, especially if the attorney is prepared. Conversely, the lawyer who senses that he is not establishing any momentum on cross because the witness is anticipating his questions accurately can regain the advantage simply by skipping around. The person on the stand must be warned ahead of time that the interrogation may not be chronological or even organized and that the apparent confusion should not be mistaken for ignorance on the part of the lawyer.
It is also helpful to reassure clients that you will protect them from irrelevant or bullying questions when they take the stand, at least insofar as the judge will sustain your objections.
These are the general rules for successfully preparing witnesses for testimony, whether during deposition or during trial. All of them are designed to leave clients and witnesses better prepared and more relaxed when they finally have to testify. Your own experience will allow you to modify, alter, or ignore much of this advice.
One kind of lawyer — the public prosecutor — is a special case. Ethical Consideration 7-13 provides:
The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict… . With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution’s case or aid the accused.
The prosecutor carries more power in his briefcase on a single day than most of us will in a lifetime. Frequently his role determines the future life of a fellow human being. Given the extraordinary support prosecutors currently receive from courts and juries alike, they should exercise extraordinary restraint not to yield to the temptation of convicting at any cost.
The following exchange occurred during a recent federal perjury and false swearing case in which I represented a man accused of lying about his ownership of an airplane in documents he submitted to United States Customs authorities and in testimony before the grand jury. Customs recovered the plane on a Carolina beach after a forced landing. It was filled with marijuana. My client claimed that the plane had been sold by his corporation on a conditional sales contract and that, since he had received only the down payment, he was entitled to return of the plane. There was no implication that he had been involved in the drug transaction, only that he had been opportunistic in trying to get the plane back.
The government’s position was explained by its first witness, a postal inspector. He had testified on direct examination that my client, the defendant, had never mentioned in his initial interview that he had sold the plane on a conditional sales agreement. The agent concluded that the defendant had made up the story and supporting documents after the fact, in order to get his plane back. That, he explained, was why he and Customs Agents had taken the case to the assistant United States Attorney and gotten my client indicted.
On cross I asked if the inspector had filed a case agent report, standard operating procedure, and he replied that he had. The prosecutor handed it to me. The typewritten document did not mention the terms of sale of the airplane, just as the agents had testified.
Q: Who prepared this document?
A: A secretary at the agency.
Q: From what source? Did you dictate to her or what?
A: I don’t recall what her source was. Maybe I dictated it.
Q: What about notes? Did you take notes?
A: Yes, sir, I did. (He then produced a document from his briefcase, a crumpled handwritten memo of his first meeting with my client.)
Q: Why didn’t you tell me about these notes when I asked you what your secretary used to prepare the typewritten document?
A: Because I don’t know what she used.
Q: Is there another reason you didn’t offer these notes to me at the first opportunity.
A: No, sir.
Q: You said that if my client had told you about the conditional sales agreement during that first meeting in his office you would have never had him indicted?
A: Yes, sir.
Q: Well, tell me, sir, what these last few lines on the handwritten notes say. (At the point he read a few numbers, and I drew them on a chart so that the judge and jury could read.)
A: 250 d.p., with 240 over 12 mos.
It was immediately apparent that the inspector had been told about the term of the sale. My client had been paid $250,000 down, and the balance of $240,000 was to be paid over 12 months, exactly as he later reflected in his correspondence with Customs, the documentation he supplied, and his testimony before the grand jury.
At my client’s prompting, I reminded the inspector that during the interview the defendant had swung around in his chair, totaled some numbers on the adding machine, and handed him the tape. I asked if he remembered that my client had then begged off, saying he was busy but promising to deliver the necessary documents at a later date. The inspector remembered nothing of that, since it was not reflected in the notes; but he was stuck with the numbers. The case was over for the government, although the prosecution plodded on. The not-guilty verdict was a belated announcement of what happened with the government’s first witness.
Months later, as I jogged in the park, the cross-examination got even better. In my fantasy the government witness admits he had been instructed not to turn over the notes unless I asked specifically for them and then, in a fit of remorse, asks the prosecutor to dismiss the case. The applause from the spectators grows deafening as I turn, slowly and with great care, to my client, now a free man.
It was far more difficult to wrest those notes from the inspector than space allows me to develop. I cannot prove that the inspector was instructed to resist tuning them over to me, but I have my suspicions. While it is well within the rules for a defense lawyer to instruct his client not to offer anything to opposing counsel unless he asks for it, it is not acceptable for a prosecutor to tell that to a state’s witness. This double standard is acceptable only if we agree with the Canons and their obvious mandate. Prosecutors enjoy a huge advantage of manpower and money over their less powerful opposition. The implications of their conduct are overwhelming and far more important than the outcome of a civil suit.
Alone in their offices, prosecutors must make the most difficult decisions of all, not only when they may have to compromise their will to win, but when they must decide in favor of a defendant they may hate.
Kingman Brewster, while president of Yale, remarked that the best minds of each generation go into the law. He did not say what happened to us next and probably with good reason. We soon discover that this nation reserves a special loathing for its lawyers. While we should acknowledge the frailties of our profession that lead us to low regard, we should not do so with unrelenting self-abuse. In reality we probably mirror what society wants us to be. Clients do not choose their attorneys because of a reputation for fair play and Christian benevolence. They expect us to do the gunslinger’s work, preferably by ambush. They generally give little thought to means; they want us to win. Given these imperatives, the fragile structure of the adversary system is tested each time we put a witness on the stand. That is why the hard choices about the conduct of a case are left to the lawyers. And that is how it should be.
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