Lessons from ‘The Delaware Way’—Principles Governing Witness Interactions Before and While Testifying
The Bencher | November/December 2022
By Valerie Caras, Esquire
Tiny Delaware looms large in the law as a leading forum for corporate, commercial, and intellectual property disputes. Complementing these high-stakes cases are the First State’s high standards of civility and congeniality, affectionately known among the bench and bar as “The Delaware Way,” that “holds lawyers to high[er] standards of professional courtesy and civility—even in the heat of verbal and written battle.” State v. Overstock.Com, Inc., C.A. No. N13C-06-289-PRW-CCLD, at *4 (Del. Super. Ct. Oct. 23, 2019). As a result, civility and courteous practice punctuate all areas of practice, including Delaware lawyers’ interactions with witnesses.
As in other jurisdictions, lawyer-witness interactions commonly occur in two settings: when a lawyer prepares a witness before he or she testifies and when the witness actually appears at deposition or trial. This article briefly summarizes Delaware’s approach to working with witnesses—an approach consistent with the American Inns of Court’s focus on promoting the highest levels of professionalism in the practice of law.
Preparing the Witness
Under the Delaware Lawyers’ Rules of Professional Conduct (many of which are modeled after the American Bar Association’s Model Rules), a lawyer has a duty to render advice about the law (see Rule 2.1), but the lawyer must not participate—directly or indirectly—in the falsification of evidence (see Rule 1.2(d); Id. at cmt. 10; Rule 2.1; Id. at cmt.1; Rule 3.3(a)(3); Rule 3.3 cmt. 2; Rule 3.4; Id. at cmt. 1).
These rules are reflected in the Principles of Professionalism for Delaware Lawyers, adopted to “promote and foster the ideals of professional courtesy, conduct, and cooperation.” For example, Principal A(1) (“Integrity”) provides: “A lawyer’s integrity requires personal conduct that does not impair the rendering of professional service of the highest skill and ability; acting with candor; preserving confidences; treating others with respect; and acting with conviction and courage in advocating a lawful cause. Candor requires both the expression of the truth and the refusal to mislead others in speech and demeanor.”
Upon that backdrop, a few principles should guide a lawyer’s preparation of a testifying witness. A lawyer should advise the witness that the overarching goal is to testify truthfully and accurately to promote the truth-finding function of the court. The lawyer should advise the witness that the obligation to be truthful extends to both the lawyer and the witness. And of course, a lawyer must not knowingly encourage the client to lie, intentionally evade a question, or falsely claim a lack of memory.
When discussing the contents of the witness’s testimony, a lawyer may use documents and other media to refresh a witness’s recollection. But those documents must not create in the witness a faulty or false memory. The lawyer may discuss the law with the witness but should do so only after reviewing the facts. When the witness provides his or her side of the story first, that may curtail any temptation to bend the facts to score legal points. Put differently, the witness should be reminded that it is not his or her job to win the case; rather, he or she must simply tell the truth.
Indeed, the search for truth should be the lodestar of witness preparation and distinguishes effective preparation from improper witness coaching. “When a lawyer runs afoul of ethical constraints in discussing facts with her witness, it isn’t the case that she does anything different. Rather, the difference is that, under the disguise of refreshing the witness’s recollection, she discusses other evidence in the case or tries to persuade the witness that his recollection of events is faulty not for the purpose of aiding the court’s truth finding activity, but for the purpose of improving the persuasiveness of her case at the direct expense of the truth.” Stephen M. Goldman and Douglas A. Winegardner, “Behind Closed Doors: Preventing False Deposition Testimony”, 36 Litigation 4 (Summer 2010) at 44.
And of course, witnesses should be educated on the demeanor that court proceedings demand. “Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct. Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.” In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 A.3d 39, 79 (Del. 2019).
The Testifying Witness
The foregoing principles adhere to the testifying witness. “It is a mark of professionalism, not weakness, for a lawyer zealously and firmly to protect and pursue a client’s legitimate interests by a professional, courteous, and civil attitude toward all persons involved in the litigation process.” Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 54 (Del. 1994) (emphasis added).
The adversarial nature of depositions and trial may tempt bad behavior. But under Delaware practice, promoting the truth-finding function of the court demands civility. “The Delaware Bench and Bar guards jealously its reputation for civility, collegiality, and candor,” Lendus, LLC v. Goede, (Del. Ch. Dec. 10, 2018). “This is not simply a matter of parochial pride, nor fusty pretentiousness or fulsome self-regard. It rests on a sincere belief that the end toward which we as judges and lawyers work—a truthful exposure of the facts in pursuit of justice—is best served by our tradition of respect and civility accompanied by vigorous, not vinegarish, advocacy.” Id.
The court’s sentiment is reflected in the Principles of Professionalism for Delaware Lawyers: “[A] lawyer should represent a client with vigor, dedication, and commitment. Such representation, however, does not justify conduct that unnecessarily delays matters, or is abusive, rude, or disrespectful. A lawyer should recognize that such conduct may be detrimental to a client’s interests and contrary to the administration of justice.”
As a result, certain principles arise when interacting with a testifying witness. At deposition a Delaware lawyer may not coach a witness either on or off the record, and speaking objections and lawyer “colloquy” are disfavored as they “tend to disrupt the question-and-answer rhythm of a deposition and obstruct the witness’s testimony.” Paramount, 637 A.2d at 56 n. 37. Indeed, the Court of Chancery and Superior Court Rules specifically prohibit a lawyer from “suggest[ing] to the deponent the manner in which any questions should be answered.” Ct. Ch. R. 30(d)(1); accord Super. Ct. R. 30(d)(1). A lawyer may only instruct a witness not to answer to preserve a privilege, ensure compliance with a court order, or present a motion. Id.
Although depositions may occur outside the court’s view, lawyer and witness conduct is not beyond the court’s reach. “Counsel should never forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them, as long as the deposition is conducted under the caption of this court and proceeding under the authority of the rules of this court, counsel are operating as officers of this court. They should comport themselves accordingly; should they be tempted to stray, they should remember that this judge is but a phone call away.” Paramount, 637 A.2d at 55 n. 34 (Del. 1994).
An out-of-state attorney who fails to control the objectionable behavior of his or her client and restore decorum to a deposition may have his or her pro hac vice admission revoked. See State v. Mumford, 731 A.2d 831, 836 (Del. Super. Ct. 1999). The same is true of a lawyer who “harasses” a witness, “using sarcasm and accusations of perjury, and rude gestures and grimaces, in an unprofessional manner.” Lendus, 2018 WL 6498674, at *8 (“It is clear to me that [counsel] intended his behavior to intimidate and discomfort the deponent. In other words, his behavior appears not only to be rude, but tactically so.”).
In sum, lawyers who follow “The Delaware Way” when working with witnesses are promoting principles embodied by the American Inns of Court and its focus on professionalism and civility.
Valerie Caras, Esquire, is an attorney in Wilmington, Delaware. She is a member of the Villanova Law J. Willard O’Brien American Inn of Court in Philadelphia, Pennsylvania.