Witness preparation is when a lawyer gets their client, or other witness, ready to testify in court or at a deposition. It is a critical part of any lawsuit, hearing, or deposition. The American Bar Association (ABA) now clarifies what is ethical and what crosses the line, especially with more legal proceedings happening over Zoom and other remote platforms.
Here is what you, as the client, need to know:
1. Preparing a Witness: Essential, Not Optional
Lawyers have a duty to prepare their clients and witnesses. Failing to do so can be considered unethical. Courts and the ABA expect lawyers to make sure their witnesses understand what’s about to happen, the importance of telling the truth, and how to handle questions under pressure.
2. Where’s the Line? Ethical Preparation vs. Unethical “Coaching”
The tricky part is that some “help” from lawyers is not just allowed but expected, while other types cross into unethical territory. The ABA draws a line between:
What’s OK (and actually required):
- Reminding witnesses they must tell the truth and are under oath.
- Explaining the process, legal strategy, and what kinds of questions to expect.
- Reviewing documents and evidence with the witness.
- Helping a witness recall facts (“refreshing recollection”), as long as it’s true.
- Practicing answers, including helping a witness use clear language, as long as those answers are truthful.
- Coaching demeanor (how to act, what to wear, staying calm).
- Encouraging witnesses to answer only what they know and not to guess.
- Telling a witness it’s OK to say “I don’t recall” if that’s the truth.
What’s NOT OK (Unethical “Coaching”):
- Telling or encouraging a witness to lie, “forget,” or fudge the truth.
- Pushing a witness to change their story to match a certain narrative.
- Using phrases like “the less you remember, the better” (this is essentially telling someone to lie).
- Offering money or incentives to a witness based on what they say (it’s only OK to compensate for time and expenses, not for “helpful” testimony).
- Trying to help a witness avoid testifying or disappear.
- Violating court rules to get an edge.
In simple terms: Lawyers can prepare, clarify, and guide. They can’t fabricate, script, or manipulate.
3. Unethical Witness Coaching: Examples
The opinion provides real-world examples of what gets lawyers in trouble:
- Telling a witness to downplay how many times they met with their lawyer.
- Encouraging someone to misstate the location of an accident.
- Using Q&A scripts to “program” what a witness will say, if it goes beyond helping clarify the truth.
- Communicating with a witness (via text, chat, signals, etc.) while they’re testifying.
4. Remote Testimony: New Ways to Cheat, New Rules to Follow
Since COVID-19, remote testimony (on Zoom, Teams, etc.) is normal. That opens the door for sneaky behavior:
- Lawyers or helpers can send texts, chat messages, or give signals off camera.
- This is still unethical—and more tempting with tech.
The ABA highlights examples where lawyers got suspended for secretly chatting with a testifying witness during a remote hearing. Even subtle things like winking, passing notes, or making gestures count as coaching if they’re meant to guide testimony in real-time.
5. How to Prevent Unethical Coaching (Especially Remotely)
The opinion encourages courts and lawyers to set ground rules, such as:
- Agreements or court orders to keep testimony uninterrupted.
- Remote deposition protocols: Cameras showing everyone’s hands, barring private chats during testimony, etc.
- Clear sanctions and penalties for violating these rules.
- Training lawyers and judges to spot red flags.
Lawyers must also keep up with technology so they don’t “accidentally” break the rules out of ignorance.
6. Practical Implications for Lawyers and Clients
For lawyers:
- You must prep your witness thoroughly and honestly.
- Any attempt to bend the truth, before or during testimony, is a serious ethical breach.
- Remote technology isn’t a loophole. If anything, it increases risk of getting caught.
For clients and witnesses:
- You should expect your lawyer to review facts, walk you through what to expect, and practice with you. They should never to tell you what to say if it isn’t true.
- If you feel pressured to lie, you can report it.
- During remote testimony, don’t check your messages or take signals from anyone.
7. Final Takeaway: Truth Comes First
The big message: Lawyers are supposed to be advocates, not puppeteers. They’re required to prepare their witnesses for court, but everything they do must serve the truth,not a clever story.
In today’s remote world, new temptations exist, but the core rules haven’t changed: Preparation is essential. Cheating is unethical. Technology is not an excuse.