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Attorney-Witness Consultations: Things Better Left Unsaid?

The Legal Intelligencer

Most practitioners will tell you it is inherently improper to speak with a witness during a break in live testimony. Most judges would probably agree. If observed, the result could be open admonishment, the preclusion of the witness' testimony, sanctions levied against the attorney or worse. On the surface such a blanket prohibition may make sense. But is this really the law? Or is it just the way things are done? The answer may surprise you.

The practice of "coaching" a witness — i.e., giving verbal or non-verbal cues as to how to respond to questioning — is unquestionably taboo. Courts are ever-vigilant in their pursuit of the truth — which is directly at odds with attempts to slant testimony midquestioning to become more favorable than it otherwise would be. So how can the conscientious attorney avoid the perils and pitfalls involved in this aspect of trial work? The answer: not easily.

From Depositions to Trials: Pre-2006 Legal Framework
Courts have described the case law addressing this issue as "scant." And for good reason — only a handful of cases address this small, yet common, occurrence. This is especially true in Pennsylvania, where the state Supreme Court has yet to definitively speak on the issue outside the context of a testifying criminal defendant conferring with counsel during a short recess — which implicates Sixth Amendment concerns not present here.

No discussion of consultation would be complete without a reference to Hall v. Clifton Precision. In 1993, Judge Robert S. Gawthrop III of the U.S. District Court for the Eastern District of Pennsylvania decided what would become the seminal case for the prohibition of lawyers conferring with witnesses during depositions. (In fact, numerous judges from the Eastern District of Pennsylvania and other jurisdictions have expressly adopted the Hall guidelines.)

According to the opinion in Hall, an attorney insisted on privately reviewing a document with the deponent before he answered any questions as to its substance. This was deemed improper. Recognizing the obvious corollaries between depositions and live testimony, Gawthrop further opined, in dicta, that a witness and his or her lawyer are not permitted to "confer at their pleasure" during a civil trial, and that, "once a witness has been prepared and has taken the stand, that witness is on his or her own."

The Superior Court Weighs In
Hall 's seemingly straightforward ban on witness consultation continued unabated until 2006, when the case of Yoskowitz v. Yazdanfar was decided. In Yoskowitz, the Pennsylvania Superior Court was given an opportunity to directly address the issue of attorney-witness conferences during a break in the direct examination of a witness at trial. And address it did — with surprising results.

At the trial level, according to a Philadelphia Common Pleas court opinion, defense counsel James Gallo was sanctioned and held in contempt for having a private conversation with his expert witness in the back of the courtroom after counsel indicated his direct examination of the witness had ended. Prior to the break, counsel had asked for a brief continuation to set up video equipment he wanted the expert to operate. Cross-examination had not yet commenced. When court resumed, however, rather than actually use the equipment, Gallo merely continued with his examination.

Gallo was immediately questioned by the court. He responded that he thought it was perfectly appropriate to have private conversations regardless of whether it was during direct examination, the opinion said. The court disagreed — and fined Gallo $5,000 (later reduced to $1,000). Without mincing words, the court stated that "under no circumstances should counsel, an officer of the court, engage in ex parte communications with any witness, especially his own, after he has been sworn in and during the course of his testimony." The court compared Gallo's conduct to "clandestinely signaling or coaching a witness." As a result, the court said it would be difficult to consider the expert's testimony as "anything but suspect."

On appeal, the Superior Court held the trial court erred in ruling that Gallo's private conversation was criminally contemptuous and sanctionable. In reaching its decision, the Superior Court sought to balance the attorney's right to an uninhibited judicial forum that allows for zealous representation, with the trial judge's right to authoritatively maintain order and integrity within the courtroom.

Interestingly, the Superior Court turned to "trial custom" — rather than black-letter law — for support, although it did identify a Pennsylvania Superior Court case and a Pennsylvania Supreme Court case where witness consultations were not held to be improper. After recognizing the Pennsylvania Rules of Evidence simply do not deal with this scenario, the court turned to the Pennsylvania Trial Guide for guidance. Notably, the Trial Guide explained that courts frequently instruct witnesses not to discuss testimony if they are in the course of cross-examination — but that this is done "more as a matter of custom than as a matter of recognized legal procedure." The Trial Guide also said courts refuse to impose such a limitation if a witness is in the course of direct examination. Thus, based on the Trial Guide and the limited record created by the trial judge's inquiry into Gallo's off-the-record conversation, the court found insufficient evidence existed to demonstrate Gallo intended to obstruct the proceedings and reversed the contempt finding. Further, the court expressly distinguished Hall as both non-binding federal precedent and as factually distinct in that the instant case involved an attorney talking with his own expert witness during a break, not during questioning.

Implications
It may surprise seasoned practitioners to learn that following Yoskowitz there is no authority for punishing an attorney in Pennsylvania (at least criminally) for conferring with his or her own witness during a break in direct examination. Equally shocking is that a court's instructions to witnesses not to discuss their testimony during a recess in cross-examination finds support more as a matter of custom than recognized legal procedure. As for direct examination, the issue is even less clear. Based on the foregoing, mid-question breaks are a no-no. But what about breaks for lunch? Or, better yet, what about breaks between direct examination and cross examination; or between cross examination and re-direct; or re-direct and re-cross?

As shown above, the Pennsylvania Rules of Evidence offer absolutely no guidance; case law only slightly more. Indeed, it seems the leading authority may very well be the "trial custom" developed by judges seeking to inhibit the appearance of impropriety between counsel and their witnesses during breaks.

Obviously the best way for attorneys to insulate themselves from any appearance of impropriety is to not speak to their witnesses until they have finished testifying and are excused. But this may seem less than ideal for the zealous advocate who desires to change tactics before his or her witness is done testifying.

Unfortunately, it is easier to identify what not to do than it is to provide guidance for every conceivable situation. Some straightforward examples come to mind. First, do not speak to witnesses while a question is pending — it is much safer to wait until an answer has been given. If you do decide to speak with your witness before the next phase of the examination, be prepared to return to a grumpy opposing counsel — or worse, a suspicious judge. Also, be sure there are no circumstantial issues that could otherwise imply wrongdoing: like when a witness changes his or her story immediately following said conference, or where a break is requested to prepare equipment that thereafter goes unused. If you still feel strongly that a witness may have simply misspoken, the safer tactic is to wait to rehabilitate them, as courts have recognized that such an approach does not create an inference that misconduct occurred.

If, however, you find yourself on the receiving end of such possible misconduct, the best approach may be to put the entire exchange on the record. And be specific. One of the issues in Yoskowitz was that the record was unclear as to what was said. Lastly, if your consultation was really as benign as you claim, waiting until you are back on the record may save you a lot of grief — although legally you may be correct. Sometimes things may just be better left unsaid.

This article first appeared in The Legal Intelligencer on October 12, 2010.

Reprinted with permission from The Legal Intelligencer.