The Legal Advocate

The following post was originally written for the Advocacy Teaching Blog by guest-blogger Andrew S. Dreier, author of Strategy, Planning and Litigating to Win

Does the Oath Make Witnesses More Truthful?

Surprisingly, swearing in witnesses may make them more truthful, and there are more things you can do to help them along the path.

Early in my career, a mentor recommended to me Robert Cialdini’s Influence: The Psychology of Persuasion (now in its 5^th edition). If you haven’t read it, it includes a discussion on human “cues”—generally automatic responses to certain situations. Amid this discussion Cialdini relates an experiment in which his team had a confederate approach about getting to the front of the line at a busy copy machine, using one of three requests:

“Excuse me. I only have five pages. Can I use the copy machine?” Sixty percent of the time this was sufficient to get the confederate onto the machine immediately.

“Excuse me. I only have five pages. Can I use the copy machine? I’m in a rush.” Given the addition of a reason for the request, the confederate was successful in getting directly on the machine ninety-four percent of the time. However, it turned out that the confederate could be just as successful even without the apparently legitimate excuse of being in a “rush.”

“Excuse me. I only have five pages. Can I use the copy machine because I have to make some copies?” proved successful ninety-three percent of the time.

People, by default, seem to be willing to help a person if the person seems to have a reason. But what do “cues” have to do with witness honesty? A lot, it turns out. In The (Honest) Truth About Dishonesty, leading behavioral economist Dan Ariely relates a series of experiments on cheating (which, if we hold stock in crimen falsi, is analogous to dishonesty).

Ariely offered participants in the experiment a cash bonus based on the number of correct responses they gave on a test. He also made it incredibly easy to cheat and (it seemed to the participants) not get caught [in reality there were checks on their performance which the participants were not aware of]. In one round of tests they determined that most people cheated. Some cheated a lot, but most everyone cheated at least a little.

Surprisingly, the percentage of cheaters did not vary perceptibly as the chance of being caught further decreased or as the size of the reward increased. But the experiment did not end by confirming this.

In the next round, they preceded the test with a question related to ethics (e.g. in one situation they asked the participants to list as many of the Ten Commandments as they could remember; in others they stated that the test was subject to the university’s honor code—even where the school did not publish an honor code). Regardless of religious affiliation, or lack thereof, when cued to think about ethics immediately prior to the test, none—zero percent—of the participants cheated. Cued to focus on ethics, the average person will attempt to be honest…generally.

Ariely’s team then conducted the test on freshmen at Princeton University, who are subjected to two weeks of lectures, presentations, and even a song about the school’s honor code during their Freshman Orientation. When given the same test by Ariely’s team some weeks after orientation, the Princeton freshmen cheated at the exact same rate as the participants in other sessions of the test. The two week honor code harangue did not improve their honesty. Yet, when the test was conducted with the statement that “This test is subject to the school honor code” at the top of the page, the rate of cheating dropped to zero. The ethics cue functioned identically with or without two weeks of lectures on ethics.

Ariely’s team conducted another round of tests, but this time with the ethical cue coming after the test, but before the participants reported their results. The number of cheaters returned to the level it had been with no discussion (i.e. most people cheated). Ariely concluded that if the discussion of ethics occurs after the person has already formed the intent to cheat, it will have no effect; the key is to focus participants on ethics immediately before they CONSIDER being dishonest. Simply coming before the dishonest act is not enough.

Can this help you with witnesses? Further study revealed that the core of this honesty cue lies with the person’s self perception. If you can cue a person to think of ethics before they decide to cheat they will work to maintain their self-image of honesty. While this may be of limited value against witnesses prepared by opposing counsel, who will have long-since formed the intent to say whatever they plan to say on the central matters, it does leave you an opportunity to get them to be honest around the edges, on matters they may not have been prepared on…provided they haven’t dug in too deep with dishonesty before you cue them with ethics and begin to nibble at the outer edges of their story.

Good luck!

–Andrew S. Dreier

On December 1, 2010 several Amendments to Federal Rule of Civil Procedure 26 went into effect. The Amendments, which were approved by the United States Supreme Court and allowed to go into effect by the Congress, included changes that limit the discovery of drafts of expert reports. The Amendments focus on four matters: narrowing the areas of disclosure related to expert reports, expanding work product protection to drafts of expert reports, establishing a new work product protection for attorney – expert communications, and making clearer which testifying experts are required to submit expert reports.

With drafts of expert reports no longer being discoverable and certain communications between the testifying expert and counsel being subject to work product protection, what is to stop the lawyer from preparing a draft of the expert report and forwarding it to the expert?  A brief internet search will demonstrates that ghost writing expert reports is not uncommon. In fact, the 1993 Amendment Advisory Committee Note recognizes the role of the lawyer in assisting the expert in preparing the report. The Note states that Rule 26 “does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed.” Parenthetically, it would be interesting to learn whether the reference to auto mechanics as experts had anything to do with the role of Marissa Tomei in the 1992 Movie, “My Uncle Vinny”.

It is therefore clear that lawyers may—and do—assist experts in preparing their reports. But is it ever unethical for the lawyer to assist in the preparation of an expert report? The answer may lie in a comparison with the ethical standards for witness preparation.

In order to answer this question, however, it is first important to understand the changes made in the 2010 Amendments regarding expert reports. Fed. R. Civ. P 26 (b) (4) provides that draft reports recorded in any form are protected from disclosure. Communications in whatever form between the lawyer and the person required to submit the report, are protected from disclosure. Three exceptions are communications relating to compensation to the witness for the study or testimony, the identity of facts provided by the lawyer to the expert to be used in forming opinions, and assumptions provided by the lawyer to the expert for the same purpose.

Second, it is important to understand the obvious possible harmful effects of ghost writing the report, whether ethical or not, may have on the merits of the case. Should it be learned at trial that the expert report was written in whole or in large part by the lawyer, the expert’s credibility, as well as that of the lawyer, may be damaged. In the worst case scenario, the report will be excluded and the expert disqualified.

Given that the draft report is now protected from discovery, it is more likely that the lawyer’s participation in the preparation of the expert report will continue and arguably less likely that unethical participation, should there be any, will be uncovered. So what are the ethical requirements? The most obvious ethical boundary is found in Model Rule 3.4 which provides that a lawyer may not “falsify evidence, counsel or assist a witness to testify falsely…” Nor may the lawyer “offer an inducement to a witness to testify falsely…”. In addition, Model Rule 8.4 provides that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Thus, just as a lawyer may not cross these ethical lines in witness preparation, the lawyer may not do so in working with an expert in the preparation of the expert’s report. An excellent article describing the ways in which a lawyer may cross the line in the general context of witness preparation is “The Ethics of Witness Preparation” by Professor Richard C. Wydick, 17 Cardozo L. Rev. 1 (1995). Also to be taken into  consideration are Principles of Professionalism promulgated by several Bars. For example, Colorado’s principals say, 4.2 We will scrupulously refrain from making misleading statements of law or fact, whether by omission, inference, or implication.¹²

Written by Michael J. Dale, Professor of Law, Nova Southeastern University Law Center and Co-Program Director NITA Florida Deposition Program