Competence & Woodsheds

In the summer, I like to get up very early and drink coffee on my steps.  Mainly, I like the quiet.  Today, there was an added bonus to my routine: I learned something new.

Until about 5:40 AM this morning, I’d never heard of the term “woodshedding.”  My initial exposure came by way of this ABA Journal post: Rethinking Woodshedding: Trust clients and let them speak freely, but carefully, when testifying.

Initially, I intended to craft a blog that linked to the post and discussed it in the terms of a lawyer’s duty of competence.  That is, what used to be considered an aspect of competent representation – woodshedding – might no longer be the best approach.  So, I decided to do a little research into “woodshedding.”

I’m glad I did.  Turns out, it’s a practice that, when taken too far, can be a violation of the Rules of Professional Conduct.

In the simplest of terms, “woodshedding” is the process of preparing a witness to testify.  The ABA post – again, it’s here – suggests that it’s time to rethink the practice.  Not because it’s unethical or inappropriate, but because, strategically, it might be a choice that causes more harm than good.

That’s where “competence” ends and we turn towards the ethics risks of taking woodshedding too far.

At some point, woodshedding crosses the line and becomes impermissible “coaching.”   A leading case on point is Ibarra v. Baker.  It’s an unpublished decision in which the U.S. Court of Appeals for the 5th Circuit affirmed, in part, a district court’s decision to sanction two attorneys who had crossed the line.  For an excellent summary of the case, check out this blog post from the law firm of Mouledoux, Bland, Legrand & Brackett.

In short, in a civil action against police officers, lawyers for the plaintiff became suspicious of deposition testimony by experts for the defendants.  They seemed to use certain words & phrases an awful lot.  The trial court shared their concerns and fined each defense lawyer $10,000 for improper coaching.

On appeal, the defense lawyers argued that they’d done what any competent lawyer would do: prepped their clients & experts for depositions.  The 5th Circuit disagreed.  The appellate court affirmed the sanctions, noting:

  • “An attorney enjoys extensive leeway in preparing a witness to testify
    truthfully, but the attorney crosses a line when she influences the witness to
    alter testimony in a false or misleading way.”

I found another case that’s much more extreme.  The ABA Journal reported it here.  Essentially, two New York attorneys were suspended for 9 months after “explaining” the law in such a way to a client as to allow her to pursue a fraudulent claim.

Tom Wilkinson is a frequent member of this blog’s #fiveforfriday legal ethics honor roll.  He’s an expert in professional responsibility & ethics, in particular ethics in litigation.  Tom’s also the former co-chair of ABA Litigation Section’s Committee.  Tom was quoted in this post that the ABA Litigation Section ran on the New York case that resulted in the 9 month suspension.  His comments are instructive.  When it comes to explaining the law to clients and witnesses, Tom says:

  • “That’s what lawyers do. However, if you explain the law with a wink, to suggest that the client should change the facts to conform to the law, that’s improper.”

So, woodshedding.  For one thing, there might be a more effective approach.  For another, even if a lawyer continues to use the old approach, the lawyer must remain cognizant not to cross the line to a shed too far.

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