There is a coach in all of us. Despite this fact, courts require
lawyers to suppress their coaching voices to prevent improper
witness influencing that changes the facts. There are fine contours
of the coaching threshold that all lawyers must toe when preparing
witnesses, making deposition objections, and consulting deponents
during breaks.
coaching crossroad for lawyers. Although every lawyer has a duty
to prepare a witness to testify, the Supreme Court tells us to
"respect the important ethical distinction between discussing
testimony and seeking improperly to influence it." A lawyer
must, therefore, "extract the facts from the witness, not pour
them into him," says a New York appellate court. ABA Model
Rule of Professional Conduct 3.4(b) also forbids assisting a
witness to testify falsely, and comment 1 to Model Rule 3.4
emphasizes how the prohibition on "improperly coaching
witnesses" secures "[f]air competition in the adversary
system."
