These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

(Failing to prepare a witness to testify “can constitute an ethics violation”; lawyers preparing witnesses to testify may: explain that the witness may say “I don’t recall” — if that is true; identify other witness’ expected testimony; “suggest choice of words that might be employed to make the witness’s meaning clear.”; advise the witness to “not volunteer[] information.” But lawyers may not engage in unethical “coaching,” which involves encouraging or suggesting witnesses to testify falsely. Lawyers may not “compensate a lay witness for the substance of their testimony or to condition such payment on the content of the witness’s testimony, even if that payment is for ‘truthful’ testimony.” During the witness’s testimony, lawyers may not signal to such witnesses, such as: “winking”; “kicking a deponent under the table,” so-called “speaking objections” intended to coach the witness. Courts also sometimes limit such discussions during deposition breaks. Misconduct might be easier when deposition or other testimony is taken remotely, so lawyers may consider “systematic precautions” in advance.)

Copyright 2000, Thomas E. Spahn