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.
· 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 is a partner in the Miami office of Shook, Hardy & Bacon, LLP, where his litigation practice encompasses contract disputes, employment, antitrust, trademark and environmental and toxic tort litigation. He also has a substantial practice as an arbitrator, mediator, facilitator and allocator in a variety of substantive contexts. He is former co-chair of the Environmental Litigation Committee of the ABA’s Section of Litigation. Mr. Barkett serves as an adjunct professor at the University of Miami School of Law. He received his B.A., summa cum laude, from Notre Dame University and his J.D. from Yale Law School.
Bruce Green is the Louis Stein Professor at Fordham Law School in New York City, where he directs the Louis Stein Center for Law and Ethics. He previously served on the ABA Standing Committee on Ethics and Professional Responsibility, was the Reporter to both the ABA Task Force on Attorney-Client Privilege and the ABA Commission on Multijurisdictional Practice. Professor also co-chaired the ethics committee of the ABA Litigation Section and Criminal Justice Section. Professor Green received his A.B., summa cum laude, from Princeton and his J.D. from Columbia School of Law.
Paul Mark Sandler is a partner in the Baltimore office of Shapiro Sher Guinot & Sandler, PA, where he has developed a national reputation for successfully representing notable clients in trial and appellate courts. His trial practice ranges from representation of defendants in criminal cases to plaints in civil lawsuits, including personal injury and constitutional law cases. He is also a Fellow of the American College of Trial Lawyers and Founder and co-chair of the ABA Litigation Section’s Institute of Trial Training. Mr. Sandler received his B.A., cum laude, from Hobart College and his J.D. from Georgetown University Law Center.