Litigation has been defined as the process of resolving public and private disputes with the help of the courts.  There is a difference, of course, between disputes that remain civil and disputes that turn acrimonious.  One fact, however, remains constant regardless of the amount at issue or which side of the “v.” your company is on – no one likes to lose, regardless of how high the stakes are.

This dichotomy, civil resolution of disputes versus “scorched Earth” tactics, frequently arises in pretrial preparation, particularly in the preparation of witnesses for deposition or trial.  Prudent counsel, of course, always makes sure that his or her witnesses are prepared for direct and cross-examination, that exhibits are in good order and that hopefully, suprise issues or documents are kept to a bare minimum or elimitated altogether.

The United States Court of Appeals for the Fifth Circuit, in Ibarra v. Baker, 338 F. App’x 457 (5th Cir. 2009) (unpublished), considered how far is too far with respect to overly coaching, or “woodshedding,” witnesses.  The crux of the underlying lawsuit concerned an action brought against law enforcement officials under 42 U.S.C. §1983 when plain-clothes police officers arrested a man who photographed and videotaped officers executing a search warrant at a neighbor’s home and seized his video recorder without a warrant.  The man sued the officers and the police department, claiming that both his arrest and the seizure of his personal property were unlawful.

During the course of the civil litigation, the defendant police officers hired a ranking official with the Texas Department of Public Safety to act as an expert on whether the officers’ actions in arresting the man and seizing his camera was reasonable and lawful.  During the expert’s deposition, his testimony was grossly inconsistent with the facts offered by the officers.  Making matters worse, the transcript was littered repeatedly with the catch phrases “high-crime area” and “retaliation,” phrases and words that drew the suspicion of plaintiff’s counsel because their use appeared rehearsed and fit all to perfectly in this action.  Plaintiff’s counsel brought the issue to the trial judge, who harshly criticized the officers’ attorneys.  He found both the expert’s and the attorneys’ conduct sanctionable, assessing $10,000 against the attorneys alone.  Although the §1983 action at issue eventually settled, the attorneys appealed the sanctions levied against them.

On appeal, the attorneys argued that they did nothing out of the ordinary in meeting with their retained expert before his deposition, in preparing their clients and expert for testimony, and in suggesting to them that if certain facts were true, then those facts would assist in the defense of the case.  In rejecting the attorneys’ position, the Fifth Circuit initially found that the evidence against them to be “a bit scant,” but nonetheless, did not warrant reversing the district court’s findings.  The panel specifically found that the attorneys had improperly coached witness testimony concerning “retaliation” and “high-crime area.”

There is a line separating thorough preparation from woodshedding a witness.  The Fifth Circuit in Ibarra drew it as such:  “[A]n attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.”  Ibarra, 338 Fed. Appx. at 465.  Attorneys have a duty not to cross the line in preparing witnesses to testify.   Corporate witnesses and representatives can assist counsel in combating an opponent’s woodshedding witnesses and other objectionable tactics by alerting counsel of an opponent’s suspicious testimony or inconsistent actions as early in the litigation as possible.  At that juncture, counsel will likely have several options at his disposal, including vigorous cross-examination during a deposition concerning exactly how the witness was prepared, filing a motion with the trial judge as in Ibarra, etc.

Ibarra v. Baker, 338 F.App’x 457 (5th Cir 2009) (unpublished).