I am doing a research about ethics in international arbitration so I need to know how witness coaching is dealt with in various Countries. Thank you in advance for your cooperation!
Thank Hassan Syed
and Michael Uebel for your kind and very useful answers.
In the United States, witness coaching is an inevitable consequence of the adversary process as it is implemented here. ”Practice guides” for trial lawyers recommend witness preparation in civil and criminal cases for all witnesses, especially expert witnesses. Many trial lawyers consider it malpractice not to go to the edge of ethical boundaries (if not beyond) to win for their side.
On the other hand, there are studies upon studies that demonstrate how the competitive aspects of the adversary system lead to injustice. Preparations of eye witnesses (starting with police ID techniques through encouragement to make strong statements at trial by prosecutors) have led to documented wrongful convictions. “Junk science” — often no more than so called experts simply being advocates for the “side” they are hired by — is also found to be a leading cause of wrongful convictions as well as scientifically unsupportable civil judgments.
Much said about the problem. Given the adversary system, solutions are as yet not apparent.
Please share your research. Kind regards, Bob Sanger
Under German law witness coaching is limited by the duty of truthfulness, § 57 S. StPO, § 395 ZPO. I can recommend Hoffmann/Maurer, NJW 2018 (257) for further reading.
Witness "Coaching" or "Horse Shedding" is expected in the U.S. As a former Trial Judge, active arbitrator and former Trial Advocacy Professor, I agree with Robert Sanger that it would be regarded as malpractice NOT to prepare your witnesses.
There are restrictions precluding lawyers from facilitating or suborning perjury etc. But "regulation" is largely in aspirational codes. I can not think of ever reading of any actual investigation or attempted discipline of an attorney relating to "Witness Preparation."
These vastly differing practices can lead to serious imbalances of expectations and preparation in international arbitrations. I have practiced and been a Trial Judge and arbitrator in the "French Civil Law" jurisdiction of Louisiana, and in the "Common Law" State of Texas. In both states and in the federal courts witness preparation is the norm.
Where the parties to an international arbitration are from different legal traditions, there is a serious risk of differing practices. If not addressed and dealt with, this is likely to impact the ultimate outcome of the arbitrations.
That strongly suggests, indeed almost requires parties from a "Civil" jurisdiction to seriously consider retaining U.S. advocates or English Barristers as arbitration counsel. (Barristers have more restrictions than U.S. counsel, but are used to addressing this issue.) At a minimum counsel should raise this issue, and related issues, with the Tribunal at the earliest practical opportunity to establish common expectations and appropriate parameters of permissible behaviour.
Whether in an arbitration or a court, the result should be justice for the parties. It should not be due to misplaced expectations or advantages of technique.
I would also be very interested in your Research conclusions.
There is a distinction between prepping and coaching. Soft law texts formulated for use in ICA have begun to confirm that prospective witnesses may be prepped, although the parties are free to agree on a stricter rule. By contrast, during cross examination, for counsel to have prospectively worked out with the witness, and deployed, a cue that affects the witnesses' manner of answering in real time (such as by making a particular objection) --that would be improper "coaching."---at least as I use the terms.
Thank you, Richard Faulkner and Jack Coe for sharing your important experiences and point of view.
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