Preparing Your Company Employees to Testify

Types of Company Witnesses

• Fact Witnesses – Persons with personal knowledge of relevant facts

• Officers, Directors or Managing Agents – Persons testifying on personal knowledge over matters they direct or control and may bind the company

• 30(b)(6) Corporate Representatives – Specially selected persons who speak for the company based on “information known or reasonable available” to the company

Goals of Witness Preparation

Assist Witness with Effective Communication

Make Witness Comfortable with the Examination Process

ETHICAL CONSIDERATIONS

Model Rule 1.4: Communications

(a) A lawyer shall… (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished…

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Model Rule 3.3 – Candor Towards Tribunal

(a) A lawyer shall not knowingly… (3) offer evidence that the lawyer knows to be false.

Model Rule 3.4 – Fairness to Opposing Party

A lawyer shall not… (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

Model Rule 1.13 – Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

Model Rule 4.3 – Dealing with Unrepresented Persons

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested… The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel…

• A lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client.

• Preparation consistent with the rule… may include…

Restatement (Third) of Law Governing Lawyers:

Preparing The Witness to Testify

• Discussing the role of the witness and effective courtroom demeanor

• The witness’s recollection and probable testimony

• Revealing… other testimony or evidence that will be presented … and asking the witness to reconsider…

Restatement (Third) of Law Governing Lawyers:

Preparing The Witness to Testify

• Discussing the applicability of law to the events…

• Reviewing the factual context into which the witness’s observations or opinions will fit

• Reviewing documents or other physical evidence…

• Discussing probable lines of cross-examination…

Restatement (Third) of Law Governing Lawyers:

Preparing The Witness to Testify

• Witness preparation may include rehearsal of testimony.

• A lawyer may suggest choice of words that might be employed to make the witness’s meaning clear.

• However, a lawyer may not assist the witness to testify falsely as to a material fact.

Restatement (Third) of Law Governing Lawyers:

Rehearsal of Testimony

Preparing the Witness’s Testimony:

Managing the Scope• Informing the witness about case themes

• Determining how witness’s testimony fits

• Confirming by comparison to evidence

• Imposing limits on witness’s role

• Restraining the urge to “help” or “convince”

• Accepting the obvious

• Admitting “I don’t know.”

• Understanding privileges

Preparing the Witness’s Testimony:

Fine Tuning the Message• Finessing testimony

• Practice listening and responding

• Controlling examination with confidence

• Practicing video presentation skills

• Maintaining composure

• Dressing and acting the part

Choosing Your Witness by Characteristics

ArticulateAttentiveConfidentExperiencedHonestPatientRespectfulStrategicThoughtful

ArrogantConfrontational

DefensiveDismissive

EvasiveGlib

InattentiveOverconfident

Rude

Special Considerations for 30(b)(6) Corporate Representatives

Responding to Notice

• Recognize testimony binds company • Prompt review and narrowing of noticed

subjects by agreement or court intervention• Dedicate time to learn what information is

“known or reasonably available”• Designated representative is not necessarily

the most knowledgeable

Special Considerations for Employees in Management

May be de facto company representative if:• Possess power to exercise judgment and

discretion on corporate matters• Relied upon to present company’s POV• Identified with interests of the company• Employed in position of high authority• General responsibilities relevant to case.

Special Considerations for General Counsel’s Office

• Company is your client – not employees• Only legal advice is protected• Document anticipation of litigation• GC as corporate representative may waive

privileges on more than designated subjects• Investigative work for corporate

representatives is discoverable

Derick J. Rodgersdrodgers@lawdcm.com

DAVIS, CEDILLO & MENDOZA, INC.755 E. Mulberry Ave., Ste. 500

San Antonio, Texas 78212Telephone: 210.822.6666

Facsimile: 210.822.1151