By Dr. Ken Broda-Bahm:
Is there anything wrong with a witness meeting with a communication specialist in order to prepare for deposition or trial testimony? Maybe 30 years ago, the answers would have been "yes," "maybe," or "best not to arouse suspicions." But trial consulting has come a long way from those early days when witness preparation facilitated by specialists was sometimes seen as just a new way of woodshedding. Now, the practice is quite normal. In higher stakes cases, it is a safe bet that both sides are bringing in communications or psychology experts to help the fact witnesses prepare testimony that is clear, confident, and effective.
But that doesn't mean the fact of those meetings, much less the substance, ought to be broadcast. Attorneys, consultants, and clients all have a strong interest in protecting the work product that is at the heart of witness preparation. In recent years, there have been a few notable incidents where opposing counsel have tried to "out" the consultant and open the door to what was discussed. In the Jeffrey Skilling (Enron) trial, for example, the consultant was identified in court, and her C.V. was put up on the screen. Dr. Phil McGraw --once a trial consultant -- was also the subject of a prolonged court battle aiming for discovery. There have been an additional handful of cases around the country that have also sought to discover witness preparation work product. By and large, the resolutions of these cases have been on the side of protecting the information: barring exceptional circumstances, opposing counsel has no legitimate reason to inquire into meetings that are clearly attorney work product. Even more encouraging, attempts to pierce that veil have been notably rare, especially given how common the practice now is. Still, there is reason to be cautious. This post will point the reader to a few important articles on the subject and share a few broad principles that ought to be applied by counsel, consultants, and witnesses.