Pre-trial depositions are a routine but critical part of litigation practice. They preserve evidence and develop a record for summary judgment, settlement or trial. In some instances, lawyers can even be admonished by the court for not properly preparing a witness to testify.

There are a number of rules of civil procedure governing what happens during a deponent’s testimony or afterward. Moreover, for lawyers, there are additional ethical considerations for preparing witnesses for their deposition. A recent opinion from the ABA Standing Committee on Ethics and Professional Responsibility (Formal Opinion 508) recognized that, while “the failure adequately to prepare a witness would in many situations be classified as an ethical violation,” what a lawyer can do during witness-preparation is governed by the rules of professional conduct.

To avoid any issues, lawyers should be aware of the proper “do’s and don’ts” of working with witnesses in preparation of a deposition.

Ethical vs. Unethical Witness Preparation

At the outset, lawyers are permitted to meet with their witnesses multiple times and may review documents or other physical evidence together. Lawyers also can provide a road map of the deposition process and context for the case facts or strategy. Lawyers can even give a primer on the tenor or habits of opposing counsel. Some lawyers may choose to provide the witness with guidance about how to dress or behave during the deposition.

As to the content of the testimony, however, it is important to note that there is a difference between preparing a witness and coaching a witness in their proposed testimony. Formal Opinion 508 provides some guidance about what is permissible in deposition prep. Although lawyers are not permitted to script what a witness will say or fabricate evidence, lawyers can assist the witness by “suggest[ing a] choice of words that might be employed to make the witness’s meaning clear.” It is also permissible for lawyers to inform witnesses that “I don’t recall” is a complete sentence—if the witness does not know or recall the answer to a question, they can say so.

However, there are limits. ABA Model Rule of Professional Conduct 3.4 discusses fairness to opposing counsel and provides in part that “[a] lawyer shall not … unlawfully obstruct another party’s access to evidence … [or] counsel or assist a witness to testify falsely.” Testifying “falsely” can mean lying, omitting information or providing otherwise misleading testimony. Lawyers cannot suggest that a witness should “forget” facts that they know.

In other words, lawyers can, and are encouraged, to work with witnesses in advance of a deposition to adequately prepare their witness in the truth-finding process. However, in a process where “fairness to opposing counsel” is a key principle and ethical obligation, lawyers cannot coach their witnesses to lie, hide bad evidence or omit the truth.

Interacting With a Witness During the Deposition

The ethical requirements for attorneys defending witnesses during deposition do not end once the deposition begins. Lawyers are not permitted to coach witnesses during a deposition. For example, speaking objections, winking, kicking under the table, or “accidentally” spilling coffee during key parts of testimony are well-known “don’ts.”

In addition, there can be ethical concerns for what happens during breaks in the deposition. Jurisdictions differ on whether lawyers are permitted to speak with their witnesses during breaks. Lawyers should familiarize themselves with the local rules or any standing orders or even seek court guidance in advance. The risks can be severe—in jurisdictions that do not permit private conferences between lawyer and deponent during breaks, questions to the deponent about the content of any such conversations may be fair game.

Ultimately, decorum, professionalism and a lawyer’s overall behavior during the deposition will be monitored by all parties. Everything that is said will typically be recorded, and the judge is only a phone call away.

Improperly coaching a witness during a deposition or other sworn testimony can lead to sanctions or other penalties for the lawyer from the bar. There can be consequences for the client, too. For example, one New Jersey lawyer’s misconduct during the testimony of his client recently led to dismissal of the client’s slip-and-fall claim. Apparently believing no one could understand them when speaking in Spanish, the lawyer coached his client regarding her testimony on certain key facts. The defense counsel’s bilingual paralegal understood and raised concerns. Ultimately, a New Jersey appellate panel concluded that dismissal of the lawsuit was permissible in light of the lawyer’s misconduct.

Risks of Remote Depositions

Conducting depositions remotely became very popular during the COVID-19 pandemic. This preference has continued for many, given the ease of scheduling, the convenience of technology and the resulting reduction in travel expenses. But, as noted in Formal Opinion 508, “[t]he task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously ‘coach’ witnesses in new and ethically problematic ways.”

Before even scheduling the deposition, lawyers might want to agree to a protocol that confirms the ground rules, including, for example, that no party will attempt to communicate with a deponent during the testimony by chat or text or any other means.

For cases without such a protocol or where a deposing lawyer has concerns about potential coaching, questions posed at the beginning of the deposition can ascertain whether the circumstances could give rise to improper communications, such as whether another person is in the room with the witness or whether the witness has websites, case-related documents or notes in front of them during the deposition.

Ultimately, lawyers must ensure that the preparation of witnesses for deposition comports with the duty to maintain fairness to opposing counsel and commitment to the truth-finding process.