by David C. Kent
Interviewing and preparing witnesses to testify is an activity almost taken for granted by trial attorneys. The Maryland Supreme Court stated, “Attorneys have not only the right but also the duty to fully investigate the case and to interview persons who may be witnesses.” State v. Earp, 571 A.2d 1227, 1234 (Md. 1990). Prof. John Applegate, of Indiana University School of Law, bluntly noted: “The practical literature uniformly views the failure to interview witnesses prior to testimony as a combination of strategic lunacy and gross negligence.” Applegate, Witness Preparation,” 68 Tex. L. Rev. 277, 287-88 (1989).
But the line between “preparation” and coaching or even tampering sometimes can become blurred. The federal statute against witness tampering, 18 U.S.C. §1512, addresses many forms of intimidation and improper persuasion. At one extreme are threats or acts of physical violence, illustrated by the criminal defendant in Brooklyn federal court accused of making a throat-slitting gesture to a prosecution witness testifying during trial in November 2017.
The statute extends beyond threats or acts of physical force and includes any act of intimidation, threat, corrupt persuasion or misleading conduct intended to influence, delay or prevent testimony or to withhold, destroy or conceal evidence. A headline-grabbing example was Special Counsel Robert Mueller’s superceding indictment in June 2018 charging Paul Manafort with witness tampering and suborning perjury by contacting two potential witnesses through phone and encrypted text messages concerning activities made the subject of Manafort’s prior indictments.
Problems can arise in civil cases, too. Particularly when conducted during the “heat of battle,” witness contacts that might seem mundane and ordinary under other conditions can appear different as trial looms or is under way. Suddenly, charges of witness tampering can move from the theoretical to the real. This was seen in two civil trials in the fall of 2017, where complaints about witness contacts erupted in the middle of trial and escalated to accusations of witness intimidation and tampering.
In a federal court case in the DePuy Pinnacle hip implant litigation in Dallas, a sales representative who had been contacted by defense counsel for a telephone interview apparently was unnerved by the request and contacted a doctor who was scheduled to testify at trial to caution him of possible repercussions from testifying. In a state court case in Philadelphia involving the blood thinner product Xarelto, the defendant’s sales representative called upon the plaintiff’s treating doctor shortly before the doctor’s deposition, after which the doctor apparently gave testimony surprisingly favorable to the defendant.
In both cases, plaintiffs’ counsel learned of these contacts on the eve of or during trial, whereupon they promptly complained. The courts and the parties then diverted significant resources in the middle of trial to investigating, interviewing and deposing witnesses, with the federal court even involving the FBI. Ultimately, neither court found an impropriety had occurred, and they did not permit either jury to hear evidence about the contacts.
Another problem area is compensating witnesses for their time and expenses in testifying. Most states permit “reasonable” compensation for time and expenses incurred in preparing to testify, although some restrict compensation for courtroom testimonial time. The problem arises when the compensation is (or appears to be) for the substance of the testimony. In October 2017, the Nevada Supreme Court suspended an attorney’s law license for offering to pay a witness $7,000 for “honest testimony” supporting certain facts and threatening the witness with personal liability and “the legal implications of perjury” if he testified the other way. Regardless of whether the testimony sought by the lawyer ultimately proved to be truthful, the court held, it was improper to offer payment contingent on the substance of the testimony.
In April 2018, the Fifth Circuit reversed a judgment for the plaintiff in a different DePuy hip implant case for, among other things, statements plaintiffs’ counsel made in closing argument contrasting the plaintiff’s two “unpaid” medical experts with the defendants’ retained experts. It turned out that plaintiff’s counsel had donated $10,000 to one expert’s private school alma mater before trial and collectively sent the two experts $65,000 after trial. The Fifth Circuit wrote that the pre-trial donation to one expert’s favored charity, the other expert’s expectation of being paid, and the post-trial payments to both experts was “individually troubling, collectively devastating.” Christopher v. DePuy Orthopaedics, Inc., 2018 U.S. App. LEXIS 10476 (5th Cir. April 25, 2018).
In sum, the hallmark is reasonableness. Learn what the witness has to say; don’t teach him what he ought to say.
David C. Kent is counsel at Drinker Biddle & Reath, LLP and can be reached at email@example.com.