How much do lawyers coach their clients?

Factual Questions
1

Inspired by this threadand this post.

I’m certainly not arguing with anything here. However, what I’m wondering is how much does the average defense attorney bend these guidelines? In the case in the original thread it seems to me that the defendant in question has a couple of things that she can say in her own defense. Assuming that the factual thing was “I killed my parents and little brother because I hated them. BF came along for the ride because I told him I wouldn’t put out if he didn’t” (which is sort of what the BF is saying, incidentally) - that’s not going to get a huge amount of sympathy from the jury. But assume it’s the truth - would a defense attorny just not put their client on the stand? What if the client insisted? Is the defense attorney allowed to “steer” the testamony so it sounds less horrible? Would they be inclined to omit stuff knowing that the prosecution is going to bring it up?

This may be an IMHO, but it seems like there’s a factual question here. FWIW, I’m talking about your average, everyday defense attorney. Not a defense attorney for Tony Soprano or something.

2

I understand that the rules are a bit different in Canada than in the US. As I recall, Northern Piper and Muffin have gone over the rules in Canada, and I remember posting something (along with the usual suspects, Gfactor, Bricker, and Random), but I can’t find the relevant threads.

In the US, a lawyer cannot put on testimony she knows is false. But the client has a right to testify. So the client testifies without the lawyer’s assistance.

As for how the attorney prepares the witness to testify, think about it this way. When someone asks you whether you like their new haircut, there are a hundred ways to say that it looks terrible. Some will get you smacked, and some will fly under the radar – but all of them can be different ways of phrasing the truth. It’s just a matter of making the witness think about how his or her words will sound in the context of the case.

I’d say more, but I hear my G&T melting by the pool…

3

Right. So I guess my question is how much tweaking can the DL do? For instance, if the answer to “Why did you kill your parents?” is “I hated them and I wanted their house.” I’m assuming the DL can just not ask that question and instead ask about home life, or emotions or whatever to lay the ground work to suggest that the parents were horrible monsters. I’m just wondering how far that goes?

I mean, there are incidents from my childhood that could be spun to make my parents look like loonies, but that’s not an accurate protrayal of how things actually were. How much leway does a lawyer have before they’re out and out endorsing lying?

4

Of COURSE they coach their clients. It’s their job in an adversarial system to help the client get off. The attorney is not being hired to help society find the truth. It’s child’s play to do it in a way the obeys the letter, but not the spirit of any law.

*Client: I shot the guy with Ben’s .22.

Atty: Are you absolutely positive it happened that way? Sometimes alcohol can cloud your memory, and you had been drinking earlier in the day. The jury has to know for sure or they can’t convict you. The only testimony about what happened is yours because Ben was killed by the cops during the arrest…*
You get the idea.

The post you refer to which says this: “That’s simply not correct. Any lawyer who tells her client what to say while testifying is in breach of professional ethics and possibly committing the criminal offence of suborning perjury, for which they can be disbarred.” is technically correct but silly and naive if the poster actually believed it has any relationship to reality.

5

Forgive me if I choose to believe that conducting oneself in accord with the guiding principles of one’s vocation is not “silly and naive.” Are there lawyers who are vile, lying sacks of dirt? Yes. I could name seven or eight of them with whom I have, unfortunately, interacted. Do they represent the typical lawyer? I’d like to think not, any more than the doctors who tried to blow up the airport in Glasgow represent typical doctors.

The balance comes in through cross-examination. While your lawyer can elicit testimony about your parents to make them look like loonies (and, really, whose parents aren’t a little bit crazy?), the opposing lawyer (the prosecutor) in this instance, can elicit other testimony from you on cross-examination to bring out the balance of the facts, so that the jury gets a more complete picture.

I suppose that the issue is that as long as the lawyer elicits only true facts, even if they represent only one side of the issue, the lawyer’s on the right side of the law. Cross-examination is the tool that we’ve developed to reach the truth, because it permits the bad facts to come out as well.

6

And what experience do you have that leads you to believe you are correctly describing reality?

I was a criminal defense attorney, a public defender. I certainly prepped witnesses, but I never engaged in the sort of wholesale manufacturing of lies you paint. Nor did anyone in my office.

I have known one or two practioners who I strongly suspect played the sorts of games you mention, yes. But it was hardly so pervasive that the contrary apprach had no “relationship to reality.”

So where did you come to form your view of reality?

7

And there’s a strategic point to be made here: if you let all the bad facts get pulled out on cross, the jury starts looking at you like you tried to hide something. Much better to develop some of your damaging evidence during your direct, when you can soften or mitigate it, than let it be a complete surprise when the other side elicts it.

8

I believe the poster in question is, in fact, a lawyer. If you are also a lawyer, then I suppose you’ve just admited that you’re an unscrupulous one, however I really don’t think that’s an accurate representation of the profession as a whole, or defense lawyers specifically. YMMV and all that.

Ahh - see here is where my question lies. For instance, lets say that you’re average Joe Lawyer. No more or no less honest than average. You have a client, Ralph, who you have every reason to believe is guilty. You’re not going to ask him, because you don’t want to put yourself in a bad position, but you’re pretty sure it’s true. However, Ralph has hired you to carry out his defense, and you’ve decided to accept the case.

Lets say that Ralph purchased a gun 2 days before he shot someone with it. Both sides know. When Ralph is on the stand, how much leeway does an honest defense attorney have? Assume Joe Lawyer is guessing that Ralph bought the gun to shoot his victim however, once, 5 years ago, Ralph’s family talked about having a Ralph Family BBQ and Shoot-Em-Up event. Could you suggest that was what the gun was purchased for? Or is that too remote? What if the family actually had the BBQ? I guess what I’m wondering is how far can an honest defense lawyer stretch the truth before s/he’s not honest anymore?

9

Here’s another aspect of this case (or ones like it); suppose the defendant has a loose acquaintance with reality, and puts forth their testimony (before it hits the courtroom) as the absolute god’s honest truth, when the lawyer suspects that it is not completely honest. What does the defendant’s lawyer do at that point?

10

My experience is with the Chicago court system and torts; not criminal law, although televised cases such as OJ Simpson’s leave me underwhelmed with any sort of faith that criminal defense attorneys are particularly interested in protecting the truth at the cost of the client. It consists of perhaps a dozen trials during which I have given testimony as an expert witness, and perhaps 50 or so cases that did not proceed to trial. Perhaps the same number of lawyers, plus countless casual conversations with professional colleagues, lawyers and those who deal with lawyers.

I did not mean to paint an impression of the “wholesale manufacturing of lies.” I meant to give an illustration of the kind of coaching an attorney can do without crossing a technical line. Specifically, an attorney may give his client the consequences of saying one thing versus another and allow the client to choose an option. Part of “prepping” for every deposition I have ever given is the review of which questions might have what type of bearing on the case.

I stand by my statement that “Of COURSE they coach their clients. It’s their job in an adversarial system to help the client get off. The attorney is not being hired to help society find the truth.” I also stand by my opinion that it is silly and naive to think otherwise. I could have found a less pejorative example, perhaps.

Nevertheless, it is the case that even with criminal cases, the defense lawyer’s job is not to find and present truth. It is to try and mitigate the client’s situation. One may couch it in nobler terms, but essentially the lawyer’s job is to leave unsaid whatever damaging facts can be left unsaid; it is to positively color whatever can be positively colored; it is to negatively spin whatever can be negatively spun to advantage; it is to cast doubt wherever casting doubt may help.

There is no nice way to say it: in an adversarial system the attorney’s job is to distort any damaging truth as convincingly as possible. There is no chance of being successful without coaching clients wherever possible, even to the point of coaching them not to testify at all.

I believe, FWIW, that our adversarial system works reasonably well, and I think that there is a secondary effect which is very beneficial to society: each of us knows that if we find ourselves on the wrong side of the law we can call on someone who will be OUR advocate. We want to be coached.

11

In my favourite legal movie The Verdict there is a nice scene with James Mason as Ed Concannon preparing his client for a civil trial. The movie is from a book by Barry Reed the Boston attorney who was a recipient of the Clarence Darrow Award for trial excellence and was president of the Massachusetts Trial Lawyers Association.

12

alice_in_wonderland, couldn’t Ralph’s lawyer just ask about crimes in his neighbourhood (recent home invasions, carjackings, muggings etc), ask if he felt less safe than previously, and imply that the gun was bought for protection?

It would work especially well if a family member/neighbour/colleague had been a victim of crime at any time in the few weeks before the gun was purchased.

There’s no reason why you couldn’t feel less safe in your own neighbourhood and simultaneously be plotting to kill someone, after all.

13

Next to no experience in crim law, but some experience prepping and examining witnesses for deps, trials, and various hearings. Common sense should tell you that it is not too terribly difficult to influence the tenor and content of someone’s testimony while falling far short of advocating that they lie.

Probably the most effective method is simply to emphasize that they ought only respond to the question asked, and not volunteer anything. Carefully planning your questioning and “rehearsing” them prior to testimony is pretty effective in getting the story you desire told firmly ingrained in the witness’ head.

14

Also, if you are Ralph’s lawyer, and you think he did it and you think that he will lie on the stand, why put him on the stand in the first place.

15

No one, at least, no attorney, is saying here that witnesses are not “prepped” for testimony. Putting a witness on the stand, or letting someone who is on your “side” of the case be called as a witness, without sitting down with them and going over what is likely to be asked, and helping them to understand how to avoid common pitfalls in testifying (like offering more than was asked), is malpractice, at best. This goes true for depositions, of course.

But “coaching” is a highly subjective term. If by it you mean, “putting words in the witness’ mouth,” I think you are going to find that almost no one does that. Partly they won’t because the canons of ethics don’t permit it, or at the least frown on it. Mostly they won’t because any attempt to put words in a witness’ mouth eventually backfires, usually spectacularly. After all, we may not be Perry Mason, but most attorneys become relatively competent at exposing untrue statements by witnesses, either directly, or by implication.

So, in the example given by Chief Pedant (who, by the way, should also pony up his credentials, that is, what part he plays in the tort system of Chicago’s courts, so we can judge his actual knowledge of witness “preparation”), while it would be perfectly legitimate to go over the facts of the situation with your client, the defendant in a homicide prosecution, you would be crossing the line into unethical behavior if you did more than to help the client see that his bare statment may not be the complete “truth.” Inducing him to make up facts, or prevaricate about the truth, would not be allowed, rarely happens in my experience (for the reasons given), and to assert that members of the profession do so in any sort of routine fashion is to cast calumny and slander upon people who, in the face of an already difficult reputation, do not deserve such treatment.

Yes, it’s an adversarial system, and yes, we have an obligation to present the “facts” in the best light possible for our clients. But the ends do NOT justify the means, which is why every damn attorney in every damn state in the union has undergone both a course on ethics and a test on ethics since the stupid bastards in Watergate proved that some people don’t remember that morality. Which, I admit, doesn’t mean that all attorneys are ethical, just the vast majority. :slight_smile:

16

I’ve been an expert witness in hearings. Before the hearing I would st down with my sides attorney and he would ask me mock opposing questions. He would advise me if my answer may be “misunderstood”. He, of course, never told me what to say and continually warned me not to lie.

But he did provide guidance in effectively presenting myself and my opinions.

The best advice I received from the attorney was an understanding of what a “bad” question was and how I could respond.

Extreme Example : Do you still beat your wife?
Answer 1: (long pause) I do not understand your question. Can you rephrase it?
That gives my attorney time to object. If my attorney doesn’t object, I am still under no requirement to give a yes or no answer.
Answer 2: I’m sorry, your question is confusing me since I never have beaten my wife who loves me very much since I am the nicest man on the planet."

In my case, the “bad” questions were usually due to the fact that the opposing lawyer had a bad grasp of engineering terms and would say something like “megawatt” when he should have said “megawatt- hours”. Its kind of like asking the question, “How many miles (instead of miles-per-hour) were you going when you ran off the road?”.

I understood exactly what he meant to ask, but was under no obligation to respond to an incorrect question. I could dance with him for about five minutes responding with “Your question does not make any sense to me,” before he gave up.

So my lawyers coaching was very valuable in giving me the ability to spare with opposing counsel. And he never broke a rule doing so.

17

Over a period of 25 years I have been asked to testify as an expert witness in Medical Malpractice cases, mostly in cases with Chicago and surrounding collar county jurisdictions. I would not pretend that the small amount of direct experience I have had is particularly special, although neither am I absent of direct personal experience.

As I mentioned above the example I gave was to show how it is possible to coach a client without directing him to lie.

I agree that it backfires to put words and answers in clients’ mouths. I think the more typical coaching approach is to review the case with a client and try to ensure the client and and friendly witnesses grasp the most positive spin on each likely fact and question.

As to the ethics of lawyering, I leave the readers here to form their own conclusion. What lawyering is not, in an adversarial system, is an obligation by the lawyer to present both exculpatory and incriminating evidence (or opinion) in a balanced, objective and complete fashion. That is the job of folks such as the police and expert witnesses. If one accepts that a lawyer has an obligation to put forth his client’s case in the best possible light without telling outright lies, I would say that nearly every attorney I have ever met is ethical. Moreover the profession as a whole understands how the legal system arrives a net fairness within the adversarial framework, and I think most lawyers have a sense of where to draw the line in gray areas such as coaching. I leave it to your expertise to judge whether this is a result of an ethics course in Law School or who they are as human beings.

If one’s personal ethics demand a rigorous and objective presentation of “the whole truth and nothing but the truth” then adversarial law is not for that person, whether it is tort or criminal. Adversarial law is not a 9-11 commission looking for bald unvarnished facts. It is considered perfectly ethical in my experience, for instance, for an attorney to simply not use me as an expert defense witness when my opinion would bolster the plaintiff’s case. Nor would the attorney be obligated, in my experience, to disclose my opinion to the opposing side. It is equally ethical to “prep” a client and coaching a client about the various possible spins on the bald facts seems to me to be included in such preparation.

Perhaps Dinsdale summarized it better than I: “Common sense should tell you that it is not too terribly difficult to influence the tenor and content of someone’s testimony while falling far short of advocating that they lie.”

Influencing the tenor and content of the entire case without outright lies is, it seems to me, a neat summary of an adversarial lawyer’s role. The extent to which such an approach falls “far” short of lying is rather subjective.

As to casting aspersions on the legal profession, you will find no support from me for doing so. I want and need a vigorous adversary in my corner. I do not want a shyster and have never met a single attorney whom I would characterize as such, although they probably do exist. I do want an adversarial system and I do want someone who puts the best spin on my case. I just don’t confuse that with some sort of noble pursuit of objective Truth and I suspect there are those whose personal ethics demand such a pursuit in all circumstances. Well, all circumstances right up until they are facing a DUI…

18

it seems that there is a bit of confusion, about cousel’s duty (or not) to conduct an “affirmative defense”. take this example: you are a defense lawyer, your client is accused of several horrendous crimes (let us say, vehicular homicide). You know that your client was driving the vehicle, and you also know that the police report (after the crash0 reveales your client to have had an alcohol blood level which exceeded that legal limit for intoxication. So, knowing your client was responsible for the crash, you can say"the police test for blood alcohol was in error"-or something like that. You cannot really say your client is innocent, because the facts place him there. So you might also say" my client is not responsible, because he was beaten as a child"-or something like that.

19

Whoops…make that “advocate in my corner.” Trying to do two things at once confuses me at my age and I missed the edit deadline. I want the guy in my corner to be an effective adversary against those lined up opposite me.

20

Sure - however, I’m wondering, assuming the reason that Ralph bought the gun was to shoot the other guy dead like a dog, and the DL knows (or guesses) that the prosecutor is going to ask “Ralph, why did you buy the gun?” because surely the prosecutor would ask that, what sort of guidelines can the DL offer.

Based on BubbaDog’s answer it almost seems like Ralph could answer “Gun? What is this gun item of which you speak?” ad nausium until the prosecutor pistol whiped him with it, thus causing a mistrial (wouldn’t you love to be on THAT jury!) however, that might be reaching a bit.

It is heartening to hear the lawyers in this thread suggesting that they don’t coach people to lie, or make stuff up. I suppose, going back to the other thread, featherlou’s comment that the defendant was coached seemed perfectly reasonable to me, until NortherPiper pointed out that the sort of coaching that featherlou had suggested was both illegal and unethical.

Interesting stuff, this law biz.