Preparing Your Company Employees to Testify

Types of Company Witnesses Fact Witnesses – Persons with personal knowledge of relevant facts 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 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 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. A lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client. Preparation consistent with the rule… may include… 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 Discussing the role of the witness and effective courtroom demeanor The witness’s recollection and probable testimony The witness’s recollection and probable testimony Revealing… other testimony or evidence that will be presented … and asking the witness to reconsider… 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… Discussing the applicability of law to the events… Reviewing the factual context into which the witness’s observations or opinions will fit Reviewing the factual context into which the witness’s observations or opinions will fit Reviewing documents or other physical evidence… Reviewing documents or other physical evidence… Discussing probable lines of cross-examination… Discussing probable lines of cross-examination… Restatement (Third) of Law Governing Lawyers: Preparing The Witness to Testify

Witness preparation may include rehearsal of testimony. 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. 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. 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 Informing the witness about case themes Determining how witness’s testimony fits Determining how witness’s testimony fits Confirming by comparison to evidence Confirming by comparison to evidence Imposing limits on witness’s role Imposing limits on witness’s role Restraining the urge to “help” or “convince” Restraining the urge to “help” or “convince” Accepting the obvious Accepting the obvious Admitting “I don’t know.” Admitting “I don’t know.” Understanding privileges Understanding privileges

Preparing the Witness’s Testimony: Fine Tuning the Message Finessing testimony Finessing testimony Practice listening and responding Practice listening and responding Controlling examination with confidence Controlling examination with confidence Practicing video presentation skills Practicing video presentation skills Maintaining composure Maintaining composure Dressing and acting the part Dressing and acting the part

Choosing Your Witness by Characteristics ArticulateAttentiveConfidentExperiencedHonestPatientRespectfulStrategicThoughtfulArrogantConfrontationalDefensiveDismissiveEvasiveGlibInattentiveOverconfidentRude

Special Considerations for 30(b)(6) Corporate Representatives Responding to Notice Recognize testimony binds company Recognize testimony binds company Prompt review and narrowing of noticed subjects by agreement or court intervention Prompt review and narrowing of noticed subjects by agreement or court intervention Dedicate time to learn what information is “known or reasonably available” Dedicate time to learn what information is “known or reasonably available” Designated representative is not necessarily the most knowledgeable 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 Possess power to exercise judgment and discretion on corporate matters Relied upon to present company’s POV Relied upon to present company’s POV Identified with interests of the company Identified with interests of the company Employed in position of high authority Employed in position of high authority General responsibilities relevant to case. General responsibilities relevant to case.

Special Considerations for General Counsel’s Office Company is your client – not employees Company is your client – not employees Only legal advice is protected Only legal advice is protected Document anticipation of litigation Document anticipation of litigation GC as corporate representative may waive privileges on more than designated subjects GC as corporate representative may waive privileges on more than designated subjects Investigative work for corporate representatives is discoverable Investigative work for corporate representatives is discoverable

Derick J. Rodgers D AVIS, C EDILLO & M ENDOZA, I NC. 755 E. Mulberry Ave., Ste. 500 San Antonio, Texas Telephone: Facsimile: