COURSE DESCRIPTION
Preparing witnesses – whether fact witnesses or experts – for deposition or trial or conferring with them during breaks in testimony fraught with ethical issues. Expert witnesses are paid for their time, not their testimony. Though they may be hired to support a client’s view of the facts, there are limits to how experts can be coached. There are also real limits to how attorneys can prompt fact witnesses, for instance to “not remember” unfavorable facts. There are also significant ethical issues involving how to handle inadvertently produced privileged documents and when testimony goes in an unexpected adverse direction. This program will provide you with a practical guide to the ethical issues and traps of working with witnesses.
- Paying witnesses for their time versus their testimony
- Prompting a witness to “not remember” unfavorable testimony
- Conferring with witnesses during deposition breaks and the limits of what you advise
- Dishonest witnesses – what are your obligations to the court and your client?
- How to handle the inadvertent production of privileged documents
- Drafting witness affidavits without interviewing the witness
Speakers:
Thomas E. Spahn is a partner in the Tysons Corners, Virginia office of McGuireWoods, where he advises firm clients on professional responsibility issues and properly creating and preserving the attorney-client privilege and work product protections. He has served on the ABA Standing Committee on Ethics and Professional Responsibility and is a Member of the American Law Institute and a Fellow of the American Bar Foundation. He has written extensively on attorney-client privilege, ethics and other topics, and has spoken at over 1,800 CLE programs throughout the U.S. and in several foreign countries. Through links on his website biography, he has made available to the public his summaries of over 1,600 Virginia and ABA legal ethics opinions, organized by topic; a 300 page summary of his two-volume 1,500 page book on the attorney-client privilege and work product doctrine; over 900 weekly email alerts about privilege and work product cases; and materials for 40 ethics programs on numerous topics, totaling over 9,000 pages of analysis. Mr. Spahn graduated magna cum laude from Yale University and received his J.D. from Yale Law School.
Elizabeth Treubert Simon is an ethics attorney in the Washington, D.C. office of Akin Gump Strauss Hauer & Feld LLP, where she advises on a wide range of ethics and compliance-related matters to support Akin Gump’s offices worldwide. Previously, her practice focused on business and commercial litigation and providing counsel to clients regarding professional ethics and attorney disciplinary procedures. She is a member of the New York State Bar Association Committee on Professional Discipline and the District of Columbia Rules of Professional Conduct Rules Review Committee. She is the immediate past chair of the District of Columbia Legal Ethics Committee. She writes and speaks extensively on attorney ethics issues. She received her B.A. and M.S. from the University of Pennsylvania and her J.D. from Albany Law School.