"Working With Key Players In Litigation" (C) - by Christina L. Koch

Working With The Players: Witnesses, Judges, Clerks, Bailiffs & Expert Witnesses

By Christi Koch

Inserra & Kelley, Omaha, NE

Successful paralegals are challenged every day by the litigation process. A big part of that challenge is understanding the differences in the responsibilities of the key players as the litigation progresses. This includes not only the client, but fact witnesses, expert witnesses, judges, clerks, bailiffs and court staff. This process begins at the inception of client contact and proceeds through final disposition of the case, whether it is through trial or settlement. You must be willing to work through your litigation team with each of the players and to
establish each team member’s responsibility in the process.

Preparing the Client

The first player you are likely to encounter is the client. Clients appear in all types of personalities. From the first contact, you will begin to determine the strengths and weaknesses of the client. The most important aspect to evaluate is truthfulness and credibility. It is important from the first meeting to prepare the client not only to be truthful, but how to present his or her case in a way that will be clear, concise, and believable. Does your witness have behaviors that can be interpreted as dishonest? Does the client appear to have something to hide, or does he appear truthful? It is important that the client state the facts of his case simply and clearly to avoid the appearance of self-justification or dishonesty. It is also important that the client is clear on the facts of his or her case and is not easily confused or swayed. This may require some additional preparation as to the client’s confidence level by consistently reviewing the testimony. You must be careful not to alienate the client during this process; however, the client should be prepared to answer the same question phrased in several different ways.

Likewise, it is important that the client have a realistic view on the aspects of his or her case. It is for this reason that the attorney must know everything you know. If the client informs you of an aspect of his or her case which is either favorable or unfavorable, it is your responsibility to relay that information to the attorney. It is also your responsibility to inform the client that he or she should review all correspondence, pleadings, and documents you send to him or her for accuracy and to notify you if there is something missing or inaccurate. Perception is reality when dealing with a client. If the client perceives that you are misstating or confusing their position, this feeling can lead to distrust and desperation on behalf of the client. If these feelings are not promptly dealt with, they can lead to distrust of the attorney, as well, ultimately causing weakness in your case or even bar complaints. It is important that we keep the clients not only informed but comfortable that we are giving their case the proper attention and consideration. Help the client to relay the facts of his case in the simplest and most direct terms to avoid any misconception.


Make sure the client understands that there are always two sides to every story and there will be facts and testimony that will not work in the client’s favor. It is important that the client know about all adverse facts and be given an opportunity to respond to them in an appropriate manner. It is just as important that the client learn how to deal with and appropriately respond to unfavorable facts and related testimony as it is with their own testimony. If the client is truthful and honest about the unfavorable facts, his or her testimony about the favorable facts will be more credible. It is also important to compare the testimony of each and every witness to the documents in the case. If the testimony doesn’t conform to the documents, it is necessary to find out why. You should also compare the testimony of the client with the testimony of other witnesses to sort out any inconsistencies. This includes statements, prior conversations with the client and other witnesses, the police and/or incident report, and any public records which may include statements made by any of the witnesses in the case.

Once you have compared all documents, statements, and witness testimony, the truth should be clear. If it is not, it is time to revisit the unclear issues with the client. These practices are necessary to fully prepare the client for testimony, and should help to resolve any anxiety the client may be experiencing. You should ask the client to relay the facts of his or her story in his or her own words, in order to evaluate his or her testimony for unfavorable body language, speech patterns, or expressions that may damage the value of his or her case. Be sure to warn the client against extensive explanations or self-justification, as these types of actions can be construed as dishonest or evasive. Adversary emotions do not belong in the testimony as they can be misconstrued and detract from the actual facts of the case. Take particular note of how the client may present to a jury. Notify your attorney of any issues that may affect how the client may be perceived by a jury, including any undue anxiety or worry that the attorney will need to address prior to trial. This includes any and all mental illness (i.e., depression, generalized anxiety disorder, bi-polar syndrome, etc.) that may complicate the case and the client’s testimony.

As a paralegal, it is often our job to assist in preparing the client for what to expect in regards to his or her testimony. Whether the client’s testimony will be given in person or by video, at deposition, hearing, or trial, the client’s appearance and behavior is very important. The client should be advised to dress conservatively with minimal jewelry. Business attire is always appropriate; however, the client should be comfortable so his or her mind is not on what he or she is wearing, but on the testimony to be given. The most important aspect of attire is to be respectful of the Court. If the client is married, he or she should wear their wedding ring to court. Failure to wear a ring when you are married leads a jury to be suspicious of a client. Men should be clean-shaven and women should wear modest make-up. Clients should avoid wearing any religious apparel, as they may alienate members of the jury.

Preparing the Fact Witness

Preparing a fact witness for testimony is much like preparing the client. As a paralegal, you should assist in the preparation of the witness by reviewing the facts of the case and the particular witness testimony. Document review and comparing the related testimony will help assist the fact witness with the types of questions he will be asked during direct and cross-examination. The fact witness should dress conservatively with minimal jewelry and follow the same attire rules as a client would.

The purpose of the testimony of a fact witness is to clarify the facts of the case. It is for this reason that the testimony of a fact witness should be kept short and concise. Fact witnesses should respond to the questions asked of them and be warned against elaborating or offering additional information. Just as with client testimony, fact witnesses should be advised not to guess or estimate answers and to avoid giving personal opinions, or arguing or debating with opposing counsel. The fact witness should never answer a question he or she does not understand and should be advised to listen to the whole question before answering. It is also advisable to review the testimony of the witness and clarify any points that do not conform to pertinent documents or testimony of other witnesses.


The Hostile Witness

You will ultimately need a fact witness who does not wish to testify. Some fact witnesses will refuse to even speak with you. Obviously, it is best if you can get the witness to appear voluntarily. Many times a witness is fearful of testifying and a thorough explanation of what is expected of them, including the topics on which they will be questioned, could alleviate those fears and convince them to testify. It is for this reason that it is crucial to find out why the witness is reluctant. Listen to the witness and their concerns. Often a reluctant witness will not offer the testimony desired. Do not make promises you cannot keep and be sure your witness knows and accepts the risks of testimony. If you find yourself in a situation with a reluctant or hostile witness that cannot be resolved, you should first check to see if you have a document that has the proper foundation to add the same evidence to the case as the witness would. You should also consider how crucial the testimony is to your case. If you do not have an alternate way of entering the information into evidence, you should consider serving a subpoena on the witness to force them to testify. It is appropriate at this time to notify the attorney and have a short case conference to discuss how to best secure the testimony.

Before you subpoena a witness, you must review your court rules and make sure the witness is within the subpoena power and jurisdiction of the court. You can then contact the court to issue a subpoena. Many states do this through a Praecipe for Subpoena. Others have pre-printed forms requesting the subpoena, which you can obtain through the Clerk’s office. Make sure you provide all the information requested to the court, including case caption, case number, name and address of the witness, and time and location of the deposition, hearing, or trial. In some states, a court reporter will issue subpoenas for depositions, while the court clerk issues subpoenas for hearings and trials. You should also research the witness fee required in your jurisdiction and issue that check with the subpoena. Keep a copy for your records, as you will most likely need to file a proof of service with the court, as well. You should also check your local rules to determine what constitutes effective service of a subpoena in the specified jurisdiction. Some courts allow service by certified mail, while others require a process server or service by sheriff or constable. Filing a Proof of Service will notify the judge that the witness has had proper notice, should the witness fail to appear. This will provide the judge with the necessary information to issue a contempt of court citation, should this be necessary.

When preparing for trial and even during the discovery process, I find it helpful to cross-reference the elements of the case with the witnesses and exhibits necessary to prove each element. This will help you determine which witnesses are necessary to prove your case. Always check with the lead counsel on the case before subpoenaing a witness.

The Expert Witness

One of the most important witnesses you will deal with is the expert witness. Your expert witness will assist you with providing the testimony that is based on experience, education, and scientific or technical testing to prove your case. Ultimately, to qualify as an expert witness, the witness should have superior knowledge of a particular subject that is at issue in your case. As a paralegal, you will likely have a great deal of direct contact with the expert witness. It is your responsibility to ensure that the expert witness has enough information to form his or her opinions and that their qualifications will meet a Daubert challenge. This contact varies from the initial phone call or e-mail searching for an expert to providing detailed information to your expert in preparation for his or her opinions, deposition or trial. Once you have located an expert, you should request a curriculum vitae or resume’ and a fee schedule from the expert prior to actually hiring the expert. This information is relayed to the attorney to determine if the expert has the requisite knowledge or experience to provide the opinions necessary to build your case.

Once the attorney has determined that you have the requisite expert, the paralegal will draft an “engagement” letter. This letter sets forth the facts of the case, including narrowing the issue you wish the expert to address. Also included in the letter is a statement verifying the expert is being hired at a certain rate to provide an expert opinion on a specific case. The letter should be very detailed and provide enough information to the expert to make it clear what you need from him or her. You should provide contact information, including e-mails, of both the attorney and the main paralegal on the case. This will assist your expert in obtaining any additional information the expert may require.

You will also need to set forth any deadlines in your case that affect the expert, i.e., expert deadlines, deposition and discovery deadlines, and the date of trial and/or pretrial. Expert deposition preparation is often much easier as experienced experts are aware of the litigation process and what is expected of them. Often the majority of expert deposition preparation is completed by the attorney. The paralegal will prepare exhibits and make sure the appropriate documents are provided to the expert in a timely manner. You may also schedule travel for out-of-town experts and verify any special needs for deposition or trial.

Opposing Counsel

You will likely have a lot of contact with opposing counsel during the pendency of litigation. This contact can vary from phone calls to letters to personal contact to arrange depositions, hearings, or coordination of exhibits and witnesses. It is your job to be courteous and professional, detail-oriented and to keep the case moving. You must be comfortable communicating with opposing counsel and their staff in order to facilitate discovery, mediation, and trial preparation. Often you will need to relay information between counsel, and for this reason it is imperative you document your phone calls, e-mails, notes, and memorandums and copy your attorney on each communication.

Court Staff, Bailiffs, and Judges

As a paralegal, you will also find it necessary to have contact with court staff, bailiffs, and even judges throughout the course of litigation. It is important that these communications be courteous, professional, and gracious, as you will likely have repeated contact with each of these individuals on various different cases. Some jurisdictions do not allow direct paralegal contact with the judge. Other jurisdictions have no problem with this direct contact. You should, however, be wary of any ex parte communications with the judge. Ex parte communications are communications that are made to influence the court off the record and out of the presence of other parties and are unethical. Paralegals are normally not in danger of violating this ethic as our contacts with the court and the judge normally are not made with the intention of discussing the case with the court or the judge. Contacts with the court, bailiff, or judge to schedule or reschedule hearings or relay basic information regarding the case are not ex parte communications.

You will ultimately be faced with a difficult court clerk, bailiff, or judge. It does not benefit you to alienate, argue with, or annoy the court that you will have interaction with throughout your career. Ultimately, they are there to help you and are owed respect and courtesy. You never know when you will need a speedy hearing and the bailiffs and court staff can help you to do that. You should be diplomatic, tactful and self-confident. Treat the difficult court member as you would like to be treated, and handle the things that are within your control. There are some things that you cannot do anything about. If someone is rude to you, you cannot change the fact that they are rude. You can, however, handle your reaction to their rudeness. If someone is arrogant or rude, be assertive, but polite and professional. If you treat others with respect, they eventually will treat you with the same respect.

Code of Ethics

As you learn to deal with the various players and coordinate the progression of your litigation towards trial, there are several ethical considerations you must be aware of.

First, in dealing with clients and fact witnesses, it is imperative that you inform your attorney if you discover the client or the witness is being dishonest. According to the ABA Committee on Professional Responsibility, “A lawyer in a civil case who discovers that a client has lied in responding to discovery requests must take all reasonable steps to rectify the fraud.” (American Bar Association Committee on Professional Responsibility and Ethics Formal Opinion 93-376). This responsibility extends to the paralegal. If you discover a client has lied, it is your responsibility to notify the attorney and seek his guidance on how to correct the problem.

Secondly, a paralegal must respect privileged communications. Attorney/client privilege and work product privilege extends to the paralegal. A paralegal is not permitted to talk about a client’s case with anyone outside of the law firm. A client’s right to privileged communication, however, does not preclude the paralegal from relaying information the client disclosed to the paralegal to the supervising attorney. As a paralegal, you cannot withhold information a client tells you from the attorney.

Thirdly, a paralegal must disclose his or her status as a paralegal at the outset of any professional relationship with a client, attorney, court or administrative agency, or members of the general public. This extends to being careful to determine the extent to which you may assist the client without the presence of the attorney. A good rule of thumb is that if there is any question, you probably should not be doing it.

Lastly, the National Association of Legal Assistants (NALA) has issued a Code of Ethics and Professional Responsibility, which can be found at:

http://www.nala.org/code.aspx

The National Federation of Paralegal Associations (NFPA) has issued Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement, which can be found at:

http://www.paralegals.org/associations/2270/files/Model_Code_Of_Ethics.pdf

Conclusion

Working with clients, court staff, bailiffs, judges, fact witnesses and expert witnesses is a very challenging part of our profession. That challenge can be met and exceeded by following court rules and procedure, ethical standards, and developing strong interpersonal skills to adapt to each case. Through the explanation of legal dynamics, expectations, and specific patterns of verbal and nonverbal testimony, we can assist counsel in preparing the case and the client for trial while becoming better paralegals.



Christina L. Koch, ACP, is an Advanced Certified Paralegal and Trial Practice Specialist at Inserra & Kelley, a litigation firm in Omaha, Nebraska. She has over 20years experience in the legal field. She is a member of the Nebraska Paralegal Association, National Association of Legal Assistants, and a paralegal affiliate of the American Association for Justice. She is currently a member of the Board of Directors for the Nebraska Paralegal Association and serves as the Nebraska Paralegal Association Liaison to the National Association of Legal Assistants.