In the adversarial system of adjudication, lawyers are required to present genuine evidence to the court. However, they are not obligated to present every piece of evidence that may be relevant to the case. Lawyers are permitted to offer only evidence that is favourable to their client, leaving the opposing party to present unfavourable evidence. The lawyer is also required to present truthful evidence and investigate facts, interview possible witnesses, and prepare them to testify to make a persuasive case in accordance with civil process and evidence.
Lawyers have a responsibility to prepare witnesses for adversarial proceedings, and failure to do so is considered irresponsible and incompetent. However, codes of conduct and case law prohibit lawyers from “coaching” witnesses to attain these ends. Coaching refers to directing or encouraging a witness to lie or give evasive evidence. It is considered improper and unacceptable, and courts have punished lawyers for engaging in such behaviour.
The norms of conduct ban lawyer-witness interactions when coaching is likely, and all codes of conduct forbid lawyers from talking to their own witnesses during cross-examination without the tribunal’s consent. Lawyers can prepare a witness for discovery and tribunal appearances by explaining courtroom and questioning processes, case concerns, facts, memory, admissions, choice of words, and demeanour. Nonetheless, lawyers must avoid overdirecting witnesses, pressuring them to adhere to a statement, or suggesting answers to their questions.
In addition to these standards, lawyers are also required to follow jurisdiction-specific codes of conduct when preparing witnesses for trial. The Law Society of Ontario’s Rules of Professional Conduct, for example, enable lawyers to speak to witnesses during examinations-in-chief regarding unresolved issues. However, they prohibit the lawyer from discussing subjects addressed in the examination-in-chief with witnesses before cross-examination and between cross-examination and re-examination. The British Columbia Code of Professional Conduct allows lawyers to discuss “any issue” with witnesses during examination-in-chief, and the lawyer must get court permission before talking to a witness during re-examination.
Coaching a witness is unacceptable and will be punished by the courts. It can be grounds for judicial censure, impair the weight of the testimony, and make the evidence inadmissible as not being the witness’s independent recollection of the facts being testified to. Lawyers must be careful when questioning a witness, avoid coaching, and be aware of the potential hazards of preparing a witness for trial.
In conclusion, witness preparation is a critical component of presenting a persuasive case in accordance with civil process and evidence. While lawyers have a responsibility to prepare their witnesses, they must do so ethically and effectively, following jurisdiction-specific codes of conduct and avoiding coaching or overdirecting witnesses. By adhering to these standards, lawyers can ensure that their witnesses present truthful evidence and help to achieve a just outcome in the case.
