‘Well, I wasn’t under oath back in your office …’


"If your clients won't settle their case without a trial, then a trial is what we'll have. You all can go back to the courtroom. Let me put my robe on. And let the perjury begin!"

That's how a judge once kidded us after being told back in chambers that our lawyerly attempts to settle a dispute on the morning of trial had been unsuccessful, and that it was time to make opening statements and then examine and cross-examine each other's witnesses.

It bears repeating that His Honor was kidding. Judges take their cases very seriously both before and during trials. We're all looking for some version of the truth.

The truth can come out after trials, too. Like the time a lawyer walked back to his office — following a courtroom defeat — and asked a witness why his testimony in court was so very different than what the lawyer had been told while preparing the witness for trial. 

Asked about his surprising admissions in court, the witness replied: "Yeah, well, my testimony was different, but I wasn't under oath back in your office."

Lawyers eventually get used to that, and most non-lawyers are fortunate enough to never get called to court to testify.

But what do you do if you must go to court? What can you expect from the lawyer who prepares you for your turn on the stand?

Fortunately or unfortunately, there are rules for all of that. There are things attorneys are allowed to do. And there are things attorneys must do. All of them ideally are aimed at assisting a witness in honoring the oath "to tell the truth, the whole truth and nothing but the truth."  

The ethical rules that apply to all attorneys prohibit a lawyer from assisting a witness in testifying falsely. But, as one professor has said, "Everyone knows it is wrong to ask a witness to lie. What is not known is how far a lawyer can properly push a witness short of that." 

One court decision on this issue noted that a lawyer's duty is to extract the facts from the witness, not to pour them into him. The court opined that a lawyer ought to learn what the witness does know, not teach him what he ought to know. 

So, what does all of that look like in real life? 

When you meet with the lawyer, counsel's goal will be to present the best possible case, and preparation for testimony is a big part of that. The lawyer will discuss your recollection and probable testimony and often will also discuss other evidence that will be presented. Counsel may even ask you to reconsider your own recollection in light of those facts. Doing so is perfectly permissible.

The lawyer will also discuss the applicable law and review documents and other evidence that may be introduced during your testimony. Counsel will discuss potential areas of cross-examination and may "role play" your testimony, during which counsel may suggest word choices that might make the meaning of your testimony more clear. Again, all of that is permissible, provided that testimony remains truthful. 

Of course, the line between permissible and impermissible can be blurry. In explaining the law, some lawyers may — intentionally or unintentionally — shape the conversation in such a way as to influence the recollection of facts. That's only permissible if the resulting testimony remains truthful.

A classic example of blurred lines of testimony appears in Robert Traver's 1958 book, “Anatomy of a Murder.” It's the story of an attorney whose client faces murder charges in connection with a crime of passion. In explaining possible defenses to the murder charge, defense counsel delivers what is known as "The Lecture." 

The Lecture — a speech the attorney has given to great effect on numerous prior occasions — consists of his describing the various legal defenses to murder, at the end of which he finally gets to the defense of "insanity."

The attorney knows what will likely come next. After hearing about the insanity defense, the client concludes, "Maybe I was insane."

The attorney, seizing the opportunity, replies, "You mean, you don't remember shooting him? You don't even remember threatening the bartender when he followed you outside after the shooting? You don't remember telling him, 'Do you want some too, Buster?'"

When the Defendant responded, "No, not a thing," the defense lawyer had accomplished his task. 

That kind of conduct is hopefully rare in real life, but be on the lookout for it and make sure you do not fall victim. At the end of the day, the witness's job is simply to tell the truth, and perjury charges can be the reward for doing that job dishonestly.  

Beyond the things counsel must do are the things counsel might do. Many analysts believe that jurors who must struggle with complex and conflicting versions of the truth tend to lean in favor of witnesses whom they simply "like." That makes testifying something like a job interview, and thus lawyers often offer related suggestions.

Jurors tend to like cool, calm and collected witnesses who neither hide nor become belligerent when cross-examined. Therefore, odd as it may seem given the "odd" personalities of many lawyers, counsel often will make suggestions to witnesses that run from style of dress to projecting a friendly and relaxed demeanor to being honest and forthright about memory lapses, or the fact that — every once in a while — a witness must admit something he or she would prefer to forget. The foregoing may relate primarily to "style" as opposed to substance, but style can certainly matter when judges and juries are offered conflicting truths.

So, the next time you visit a witness stand? Bring a lawyer with you. And expect — may we suggest "demand" is a better choice of words? — that above all else, the lawyer will assist you in honoring the part of our oath that references "the truth, the whole truth, and nothing but the truth."

Keeping that promise, along with such other conduct as would cause jurors to "hire" you following a job interview, will get you through the day.

Bill Rohn and Adam Brody are trial partners in the law firm of Varnum LLP. Their civil litigation practices focus on commercial, construction, employment and product liability matters. They can be reached at werohn@varnumlaw.comand ajbrody@varnumlaw.com.

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