The perils of witness prep

Last year, Chicago criminal defense lawyer Beau Brindley was tried in federal court for improperly coaching witnesses, having been charged with 21 criminal counts tied to that practice. He was acquitted by a judge who among other things remembered his own "exhaustive preparation" of witnesses when he was a practicing lawyer. (See The Beau Brindley case: Witness preparation v. coaching, LawPulse, November 2015 Journal.)

The case underscores the dilemma lawyers face in preparing witnesses. On the one hand, they owe it to their clients to thoroughly prep witnesses for what can be make-or-break testimony. On the other, they owe an ethical - indeed, a legal - duty to be truthful and not to present false evidence.

Ethical preparation starts with counseling the witness to tell the truth, but it doesn't end there. Properly preparing witnesses for a deposition or trial also means not putting words in their mouths, discouraging them from guessing or speculating, returning to the scene of the crime or accident if necessary to refresh their memories, and more, all while ensuring that enough time is left to cover all those bases beforehand.

"The first and the last thing you tell either a witness or your client is: tell the truth," says David Morgans, partner at Myers, Carden & Sax in Chicago and chair of the ISBA's Standing Committee on Professional Conduct. "That's the touchstone of [everything]. A lawyer is going to get in trouble if he's done something…to elicit falsehoods." Find out more in the May Illinois Bar Journal.