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Witness Prep Ethics: Lawyers, listen up

Witness Prep (From the Syllabus of U.P. LL.M School Prof. Janice Lee, “Cross-Border Ethics”, with guest speaker today , International Arbitration practitioner and member of the Switzerland, Germany, England, and Wales bar, Prof. Johannes Landbrecht, PhD.

(Many thanks to Prof. Jay, S.J.D., for making this available)

“First, a lawyer may discuss the case with the witnesses before they testify. A lawyer … has an ethical and legal duty to investigate the facts of the case, and the investigation typically requires the lawyer to talk with the witnesses — the people who know what happened on the occasion in question.
“Moreover, the adversary system benefits by allowing lawyers to prepare witnesses so that they can deliver their testimony efficiently, persuasively, comfortably, and in conformity with the rules of evidence.
“Second, when a lawyer discusses the case with a witness, the lawyer must not try to bend the witness’s story or put words in the witness’s mouth. As an old New York disciplinary case puts it: “[The lawyer’s duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”
“Third, a lawyer can be disciplined by the bar for counseling or assisting a witness to testify falsely or for knowingly offering testimony that the lawyer knows is false.” (Wydick, 1995. The Ethics of Witness Coaching)

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