Ask seasoned trial lawyers and they will tell you that witness preparation—whether for deposition or trial—is the hardest part of their job. It is also an important part of the American legal system.[1] Proper witness preparation is truly a fine art.

Yet, there are very few courses on witness preparation, and most lawyers lack any training on it.[2] There is surprisingly even less guidance on the ethics of witness preparation.[3] Yet, a lawyer who fails to properly prepare a witness may lose her case and client,[4] but a lawyer who fails to ethically prepare a witness may lose her reputation and career.[5] If witness preparation is important, ethical witness preparation is paramount.

One of the most famous, or perhaps infamous, witness preparation scenes is the Lecture from Robert Traver's novel, ANATOMY OF A MURDER. Over the last half century, many have debated whether that Lecture crossed the ethical line; a debate that likely won't be resolved soon.
By modifying the Lecture, however, a lawyer can at least step back from the line.

The Lecture
ANATOMY OF A MURDER was an unlikely blockbuster in 1958. Its author did not exist; Robert Traver was a pseudonym for a former county prosecutor in the midst of a career crisis.[6] Its setting in Michigan's Upper Peninsula was remote, hardly the place for intrigue. Its subject, a criminal trial, was usually covered in tabloids, not novels. Finally, ANATOMY was a cynical critique of 1950s American life.

And yet ANATOMY OF A MURDER topped the New York Times Bestseller List for 29 week[7] and in 1959 became a popular movie starring Jimmy Stewart, among others. The legendary Otto Preminger directed, and Duke Ellington composed the score. The movie was nominated for seven Oscars; the score won a Grammy.

The popularity of the book and movie cast the criminal justice system and its lawyers into the limelight. And the Lecture took center stage in the debate over ethical witness preparation.[8]

In ANATOMY, Paul Biegler gives the Lecture while representing Army Lieutenant Frederic Manion, who is charged with murdering Barney Quill. Biegler faces serious problems defending his client—Manion has no money, eyewitnesses saw Manion shoot Quill, Manion admitted to shooting Quill, and, to make matters worse, the prosecutor is Biegler's professional rival.

Biegler, as he speaks with Manion initially, considers but then dismisses the typical defenses to murder. During the interview, Biegler quickly realizes that "a few wrong answers to a few right questions" would leave Manion with no defense and notes "any smart lawyer" would give the Lecture.[9] Traver, the author and a lawyer, next describes the Lecture, its importance, and its rationalization:

The Lecture is an ancient device that lawyers use to coach their clients so that the client won't quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn't done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. "Who, me? I didn't tell him what to say," the lawyer can later comfort himself. "I merely explained the law, see." It is a good practice to scowl and shrug here and add virtuously: "That's my duty, isn't it?"[10]

Biegler goes on to describe Michigan's insanity standard. Manion, in turn, now explains that his anger and hatred toward Quill for raping his wife were so strong that he was out of his mind and does not recall anything, conveniently in line with the Michigan standard.[11] Biegler, with false modesty, begrudgingly accepts his client's account.

Yet, Biegler did not tell Manion to lie. Biegler, for his cynicism, is a dedicated believer in and defender of the American criminal justice system and the rule of law.[12] For Biegler at least, the Lecture is one means by which a lawyer does his duty to his client; that is, zealously represents him within the legal and ethical limits of the law.

The Line
There is little law addressing the boundaries of ethical witness preparation.[13] Clearly, under the Texas Rules of Disciplinary Conduct, a lawyer may not suborn perjury, create false evidence, or assist others in doing so.[14] These broadly-written rules, however, do not specify which preparation techniques are ethical.[15] In Texas, there are no ethics opinions and very few cases.[16]

The ethical line is both fuzzy and fine,[17] leaving ample room to dispute whether Biegler crossed it. For some, Biegler has covertly induced his client to lie, which is also unethical.[18] For others, Biegler is simply walking the line.[19] He does not "know" whether his Lecture generated false testimony.[20]

Even so, Biegler has given his client the means, motive, and opportunity to lie.[21] Regardless of intention (the attorney's or the client's),[22] Biegler's Lecture creates a fertile environment for false testimony. That alone should concern any ethical lawyer.

Stepping Back
Simply avoiding the Lecture, however, is not practical. First, ethics rules advise lawyers to provide their clients with "an informed understanding of [their] legal rights and obligations and [to] explain their practical implications."[23] Second, lawyers should prepare witnesses to testify effectively and efficiently, which requires at least some understanding of what is relevant.[24] Explaining the law serves both these goals. Furthermore, a lawyer can still give a lecture without giving The Lecture.

The truth, the whole truth, and nothing but the truth.
Biegler's Lecture is seemingly unconcerned with the truth. A lawyer, however, should always and consistently instruct witnesses to tell the truth and educate them about what can happen if they don't.[25] By doing so, a lawyer likely enjoys more leeway in preparing witnesses.[26]

Timing is everything.
The timing of Biegler's Lecture certainly suggests it is unethical. Whenever possible, a lawyer should learn what the facts are before a lecture that may suggest what the facts should be.[27] Discussing the law first is not necessarily unethical.[28] Delaying that discussion, however, reduces the risk of influencing a witness's testimony (especially when combined with warnings to tell the truth) and increases the likelihood of knowing when it has been influenced.

Think before putting words in your witness's mouth.
Biegler's Lecture supplies his client with legally significant buzz words to support his defense. Doing so, however, is only ethical if those words merely repackage previous testimony without affecting its substance.[29] Therefore, a lawyer must assess whether suggestions to witness testimony substantively alters them.[30] "The distinction is between aiding a witness to make a point clearly (to bring out the 'truth') versus changing (i.e. facilitating or orchestrating) a witness's presentation so that the testimony is either false or creates a false impression."[31]

Conclusion
Witness preparation raises a host of ethical challenges. In addition, the very outcome of the lawsuit may hinge on witness preparation strategy. With so much at stake, it is even more important to remember Paul Biegler's admonition that lawyers must, at all times, accept the facts as they come to light:

Lawyers were something like actors, I reflected; their range was limited by the play; they had to take the script as they found it; they dared not change the words or tinker with the dialogue. When they did they became either ham actors, on the one hand, or else shysters.[32]

Tinkering substantively with the facts is a line lawyers cannot cross and "[i]f you have to ask whether you are crossing the line, then you are probably standing to close too it."[33] So it's best to take a few steps back.

Stan Perry is a litigation partner at Haynes and Boone, LLP. Teshia N. Judkins is a litigation associate also at Haynes and Boone.


Endnotes
1. See, e.g., Peter H. Anderson, How to Avoid Common Ethical Pitfalls, 2006 NAT'L BUS. INST. ON BUILDING YOUR CIV. TRIAL SKILLS 96, 99 (explaining "vital importance" of witness preparation); David H. Berg, Preparing Witnesses, 13 No. 2 LITIG. 13, 14 (1987) (concluding it's "probably unethical to fail to prepare a witness"). Nevertheless, many other countries and international courts prohibit it. E.g. Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 K.Y.L.J. 1001, 1009-10 n.38 (1999) (Australia and Canada); Elaine Lewis, Witness Preparation: What Is Ethical, and What Is Not, 36 No. 2 LITIG. 41, 41 (2010) (England, Belgium, Italy, France, Switzerland, and the International Criminal Court). 2. See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 279 (1989). 3. See Lewis, supra note 1, at 42 (noting absence of law); Zacharias & Martin, supra note 1, at 1001 n.2 (same). 4. "There are lawyers who refuse to woodshed witnesses at all... Their clients most often are referred to as 'appellants.'" Berg, supra note 1, at 14. 5. See Jerry Markon, Investigations, Lawsuits Still Dogging 9/11 Lawyer, WASH. POST, July 10, 2006, at B01 (describing proceedings against Carla Martin, including third-party lawsuits, that resulted from her improper coaching of witnesses during the 9/11 Moussaoui trial); In re Eldridge, 82 N.Y. 161, 167 (1880) (stating "[a]n adverse decision dooms [the lawyer] always to disgrace, and often to poverty and want"). 6. ROBERT TRAVER, Introduction to ROBERT TRAVER, ANATOMY OF A MURDER (25th anniv. ed. 1983). 7. See Edwin McDowell, Publishing: Anatomy of an Author, N.Y. TIMES, Nov. 13, 1981. 8. See Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1, 25 n.75 (1995); Frederick Baker, Jr., Book Review: Reflections on the 50th Anniversary of ANATOMY OF A MURDER, 87 No. 9 Mich. B.J. 50, 51 (Sept. 2008). 9. ROBERT TRAVER, ANATOMY OF A MURDER 32 (25th anniv. ed. 1983). 10. TRAVER, supra note 9, at 35. 11. See People v. Durfee, 29 N.W. 1009 (Mich. 1886). Durfee is the authority Biegler relies upon. 12. See TRAVER, supra note 9, at 63 (Biegler lecturing Manion on the law's importance). 13. This is true not just in Texas but across the United States. See Liisa Renée Salmi, Note, Don't Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 REV. LITIG. 135, 136 (1999) (noting absence of guidance); Nicole LeGrande & Kathleen E. Mierau, Note, Witness Preparation and the Trial Consulting Industry, 17 GEO. J. LEGAL ETHICS 947, 947, 950 (2004) (same). 14. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.03, 3.04, 8.04 (including comments); accord Patricia J. Kerrigan, Witness Preparation, 30 TEX. TECH. L. REV. 1367, 1371 (1999). The same is true under the Model Rules. See Hal R. Lieberman, Be Aware of Ethical Witness Preparation Rules, N.Y.L.J., May 25, 2000, at 1, col. 1. Criminal statutes may also apply. See id. 15. Salmi, supra note 13, at 147. Yet authors have attempted to provide guidance. See, in addition to the sources cited herein, RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS: INTERVIEWING AND PREPARING A PROSPECTIVE WITNESS § 116 cmt. b (2000) and Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of "Coaching," 1 GEO. J. LEGAL ETHICS 389 (1987). 16. Texas cases include Ibarra v. Baker, Resolution Trust Corp. v. Bright, and U.S. v. Johnson. Under Ibarra, a lawyer "enjoys extensive leeway in preparing a witness to testify truthfully" but "crosses a line when she influences the witness to alter testimony in a false or misleading way." 338 Fed. Appx. 457, 465 (5th Cir. 2009) (not for publication) (citing only a secondary source). Under Resolution Trust, a lawyer may "persuade" a witness, "even aggressively", to change her mind where there is a factual basis. 6 F.3d 336, 341 (5th Cir. 1993). Under Johnson, it is "not improper" to intensively prepare a witness in order to "freeze" testimony, "prevent unexpected responses," and ensure "critical information" is provided so long as the testimony is truthful. 487 F.2d 1318, 1324 (5th Cir. 1974). 17. See Salmi, supra note 13, at 147. 18. E.g., Wydick, supra note 8, at 3, 25-26; see also Applegate, supra note 2, at 301 (discussing "prompting perjury"). 19. E.g., Baker, supra note 8, at 51. 20. See Salmi, supra note 13, at 154-55 (describing a rebuttal). 21. See Salmi, supra note 13, at 146. 22. See generally Wydick, supra note 8, at 37-52 for an in depth discussion of unintentionally influencing memory. 23. TEX. DISCIPLINARY R. PROF'L CONDUCT preamble ¶ 2. 24. See James M. Altman, Witness Preparation Conflicts, 22 No. 1 LITIG. 38, 39 (1995); Applegate, supra note 2, at 300-01; Piorkowski, supra note 15, at 390-92. 25. Kerrigan, supra note 14, at 1369-70 (same advice and listing consequences); accord Anderson, supra note 1, at 100. 26. See Ibarra, 338 Fed. Appx. At 465 (noting a lawyers "extensive leeway in preparing a witness to testify truthfully") (emphasis added); Altman, supra note 24, at 39. 27. Anderson, supra note 1, at 100-01; Salmi, supra note 13, at 154-55. 28. See Salmi, supra note 13, at 155-56; Altman, supra note 24, at 39-40. 29. See Ibarra, 338 Fed. Appx. at 466; Anderson, supra note 1, at 102-04; Salmi, supra note 13, at 160-61. 30. See, e.g., Anderson, supra note 1, at 100-01, 102-04; Salmi, supra note 13, at 160-63, 176-77. 31. Lieberman, supra note 14, at 1, col. 1. 32. TRAVER, supra note 9, at 90; accord Anderson, supra note 1, at 100-01. 33. Salmi, supra note 13, at 136 (citation omitted).