DEALING WITH non-party fact witnesses presents challenges for both sides in litigation. Many fact witnesses are biased in favor of or against one side. For cooperative witnesses, preparation often entails meeting to go over testimony prior to trial. Frequently, however, cases involve fact witnesses who are either unwilling or reluctant to meet with counsel for one side. Determining exactly how to deal with a fact witness who does not want to meet with your adversary can be challenging. This article will examine the obligations of lawyers in interviewing and preparing prospective fact witnesses for trial under the Restatement of the Law Governing Lawyers (3rd).

The Restatement recognizes that it is a standard litigation practice to interview witnesses as part of the trial preparation process. Indeed, the failure to prepare adequately for trial may be the basis of a legal malpractice claim. Section 116 provides that "[a] lawyer may interview a witness for the purpose of preparing the witness to testify." The comments suggest a broad array of activities that counsel are permitted to do in preparing a non-fact witness, including discussing demeanor, revealing other possible evidence, reviewing documents or other evidence, and discussing possible areas of cross-examination.

At the same time, there are limits to what is acceptable behavior for attorneys in witness preparation. For example, seeking to induce a witness to testify falsely is not only unethical, it is a crime. Moreover, compensation of fact witnesses raises a host of other legal and ethical concerns. See "To Pay or Not to Pay: The Ethics of Compensating a Client's Former Employee for Testifying," New Hampshire Bar News, Jan. 5, 2000.

Courts have recognized that the litigation process requires a degree of interaction between counsel and fact witnesses. In Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5^th Cir. 1993), the Fifth Circuit Court of Appeals reversed the imposition of sanctions against two attorneys for their efforts in attempting to secure an affidavit from a fact witness. Notably, the court observed that "[i]t is one thing to ask a witness to swear to facts which are knowingly false. It is another thing in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate." The court thus found it critically important to distinguish between trying to convince a witness to testify falsely and challenging the witness' recollection of pertinent facts

Aggressive advocacy has its limits. Non-party fact witnesses are not the "property" of any one side. Accordingly, the Restatement makes clear that taking steps to make fact witnesses unavailable to the opposition is unacceptable. Restatement Sections 116(2) and (3) provide that lawyers may not obstruct another party's access to a witness or assist a prospective witness in evading or ignoring process. Courts have likewise been very intolerant of lawyers who obstruct access to witnesses:

• A lawyer was suspended from the practice of law for two years for directing a client to leave a courthouse so as not to be available to testify in a case. See In Re: Geron, 486 N.E.2d 514 (Ind. 1985).
• A lawyer was disciplined for making a secret call to an adverse witness with a false message that court had been canceled. See Florida Bar v. Fischer, 549 So. 2d 1368 (Fla. 1989).
• A lawyer was disbarred for giving a gallon of whiskey to an opposing party's witness who was known to have a drinking problem in the hopes that the witness might be unavailable for trial. See In Re: Simmons, 757 P.2d 519 (Wash. 1988).

The circumstances under which a lawyer may advise a non-client witness to refrain from giving relevant testimony to the party are severely limited. Restatement Section 116(4), which is essentially the same standard as is set forth in New Hampshire Rule of Professional Conduct 3.4(f), precludes lawyers from requesting that a person refrain from voluntarily giving relevant testimony to another party unless the person is the lawyer's client or a relative, employee or other agent of the lawyer or client; and the lawyer reasonably believes compliance will not materially or adversely affect the person's interests.

The Comments to the Restatement further refine an attorney's obligations as follows:

Thus, the Restatement distinguishes between obstructing an opponent's access to a non-party fact witness and rendering accurate advice as to the witness' rights. As long as a lawyer is providing accurate information to a witness about his or her rights, the lawyer's conduct is probably permissible. Given the risks associated with rendering advice to non-client fact witnesses, however, attempting to guide non-party fact witnesses is fraught with peril.

Vigorous and effective advocacy requires preparation of fact witnesses. The Restatement provides a great deal of latitude to attorneys in conducting that preparation. Notwithstanding that flexibility, lawyers are not allowed to take affirmative steps to limit an opposing party's access to fact witnesses. Lawyers should use care in dealing with fact witnesses to avoid running afoul of their ethical obligations, as well as their duties to the court.

William C. Saturley and John C. Kissinger are trial lawyers practicing in the commercial litigation and professional malpractice groups at Nelson, Kinder, Mosseau & Saturley, Manchester. They frequently write on issues of professionalism, malpractice and ethics.

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