Brothers and sisters, I wanna see a sea of hands out there… I want everybody to kick up some noise, I wanna hear some revolution….the time has come for each and every one of you to decide whether you are going to be the problem or you are going to be the solution! You must choose, you must choose….
–J.C. Crawford, MC5 show, Wayne State, Detroit, 1970
In civil trials, and in depositions, lawyers are “preparing” witnesses to the point of suborning perjury in almost every proceeding I’ve seen. You see it every day. Witnesses lie under oath, we don’t get to the truth, and lawyers are the problem. Sue me for malpractice, call me an anti-client cretin, or just don’t hire Hull McGuire. But things are getting out of hand, and the whole system for what I do–business advice and litigation for clients I genuinely “like”–looks worse than ever.
Here’s what my firm tells witnesses:
(1) Overall setting for questioning (trial, arbitration, deposition),
(2) Responses generally (e.g., keep answers direct, short),
(3) Theory of our case,
(4) Types of questions they are going to get, and
(5) “Hard” questions.
That’s it. No telling the witness what to say. No suggested answers on “hard” questions. No closed door gems you hear about like “well, Mr. Widgetmaker, another way to answer that might be ….”
Help WAC? flesh out the details. Let’s make the above 5-pronged limitation a professional responsibility rule. To police it, let’s figure out a way to make what lawyers say to clients about answering questions only not confidential or protected by the work product immunity.