Using a wood droppings technique throws customers into a large generic category, ignoring individual experience and trying to find perfect answers. Nothing is perfect and expecting perfect answers is unrealistic. The opposing lawyer knows it and so does the jury! The lumberjack exposes your client to the risk of losing credibility and case. This is where the “competence” stops and we turn to the ethical risks of burning at the stake too far. […] I blogged, at one point, the pyre crosses the border. What about Puffery? Is there a time when a lawyer breaks the rules by […] We all know, and most of us use the lumberjack exercise to prepare a witness to testify: Until about 5:40 this morning, I had never heard of the term “stake.” My first notoriety came from this ABA Journal post: Rethinking Lumberism: Trust Customers and Let Them Speak Freely, but be careful, during your testimony. Do you have a client statement in which you believe that burning at the stake is the only way for your client to survive? Or maybe you recently had a statement with Woodshed that went wrong and you don`t want to repeat? Schedule a strategic customer testimonial call with Elizabeth! Whether to stick to the standard drill at the stake or take a broader approach is a strategic question. Is there a tactical approach that you can use, regardless of your strategic choice, how you believe your witnesses should answer the questions that the opposition asks them? Tom Wilkinson is a frequent member of the blog`s Legal Ethics #fiveforfriday Honor List. He is an expert in professional liability and ethics, particularly litigation ethics. Tom is also the former Co-Chair of the ABA Litigation Section Committee. Tom was quoted in this post as saying that the ABA`s litigation section addressed the New York case that led to the 9-month suspension. His comments are revealing. When it comes to explaining the law to clients and witnesses, Tom says: In each of these scenarios, you lose your client, which means your answers force your answers out of their mouth.
It is also known as a horse shed. You ignore their answer and replace it with your own, hoping to turn the testimony in your favor. There is a line that separates a careful preparation of the pyre from a witness. The Fifth Judicial District of Ibarra put it this way: “A lawyer has a lot of leeway in preparing a witness for a truthful statement, but the lawyer crosses a line when he influences the witness to alter the testimony in a false or misleading way.” Ibarra, 338 Fed. Appx. at 465. Lawyers have a duty not to exceed this limit when preparing witnesses to testify. Witnesses and company representatives can help the attorney combat an adversary`s logger witnesses and other offensive tactics by informing the defense attorney as early as possible of any suspicious statements or inconsistent actions by an adversary.
At this point, the defense attorney will likely have several options at his disposal, including vigorous cross-examination during testimony on exactly how the witness was prepared, filing a motion with the trial judge as in the Ibarra case, etc. Originally, I had planned to create a blog that links to the article and discusses it in the sense of the duty of competence of a lawyer. That said, what was once considered an aspect of competent representation – loggers – may no longer be the best approach. So I decided to do a little research on “lumberjacks”. At some point, Holzschuppen crosses the border and becomes ineligible “coaching”. Ibarra v. Baker is a case study. This is an unpublished decision in which the United States. The 5th District Court of Appeals partially upheld a district court`s decision to sanction two lawyers who crossed the line. An excellent summary of the case can be found in this blog post from the law firm Mouledoux, Bland, Legrand & Brackett. Der United States Court of Appeals for the Fifth Circuit in der Rechtssache Ibarra v.
Baker, 338 F. App`x 457 (5th Cir. 2009) (unpublished), examined how far too far he is in terms of over-supervision or “lumberjack” witnesses. The core of the underlying lawsuit involved a lawsuit brought against law enforcement officers under 42 U.S.C. §1983, when plainclothes officers arrested a man who had photographed and filmed officers executing a search warrant at a neighbor`s home and seized his VCR without a warrant. The man sued police and the police department, claiming that his arrest and seizure of his personal property was illegal. “Woodshedding” or shedding is a term commonly used by musicians to repeatedly repeat a difficult passage until it can be performed perfectly.  The term is used metaphorically, “the pyre” meaning any private place to practice without being heard by someone else. This is based on the assumption that an actual lumber shed is likely located in a secluded location outside the main house. So, stake.
On the one hand, there could be a more effective approach. On the other hand, even if a lawyer continues to use the old approach, he must be careful not to cross the line of a shed too far. In legal language, “burn” refers to the instruction given to a witness to have him react in favour of a party. These include inappropriate treatment of a witness or unfair discrimination against a witness during ex parte communication.  This corresponds to the concept of the metaphor that a “pyre” is a private place where such a conspiracy could take place. It is also known as “falling from the horse” and involves practical questions and answers or even a simulated attempt. Such tactics can impact a witness` memory, which is malleable and impressionable. In the simplest case, “pyre” is the process of preparing a witness to testify. The ABA post – again – suggests it`s time to rethink practice. Not because it`s unethical or inappropriate, but because strategically, it could be a decision that causes more harm than good.
Berman argues that the implicit assumptions on which the standard wood drill relies generally do not serve to advance the customer`s cause. Instead, they too often work to the client`s detriment and are not easily fixable when questioned by the client`s lawyer. Berman`s position is based on the premise that many unintended steps in difficulty can be avoided in this way. He gives the example of Bill Cosby`s affirmative answer in a statement about whether he bought drugs to share with victims of his alleged sexual assaults. Who among you has not used this standard technique to prepare a witness to testify during his testimony or in court? Who among you even remembers when and from whom you learned what can be described as a standard wood drill? In the standard exercise, the tacit assumption is that without the invaluable help of the “magic lawyer,” who knows what mistakes the “idiotist” would be capable of and thus dooms the case to failure? In jazz jargon, woodshed is often abbreviated to “shed” or “shed”. According to Paul Klemperer, a Texas-based jazz teacher, lumberjacking is more than just a practice — it`s “the place where you work on the techniques that form the basis of your improvisation skills.”  In salon music, the pyre can mean starting with a melody and working the harmonies by ear without benefiting from the music noted.  There is another possible approach to observing loggers. It is based on the premise that the client can be trusted not to be an idiot, and that it is best to present the client`s positive case even during a client`s testimony – and even during questioning by the opposing lawyer. So says Kenneth R. Berman in Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, an ABA publication.
There are four simple rules you can give any witness on how best to answer questions from opposing defense lawyers. I inferred this from watching a CEO of a Fortune 500 company answer the questions I asked him when he was fired. After that, I threw out the do`s and don`ts on several pages that so many large companies use automatically. I came to the conclusion that the witnesses found all these many exhortations too numerous to remember. On the contrary, their diversity and complexity made witnesses more fearful, often leading to more stupid responses. This article was published in the June 2018 issue of I`m glad I did. It turns out that this is a practice that, if it goes too far, can constitute a violation of the rules of ethics. Edna Selan Epstein retired from active law practice after founding her own firm in 1989 and handling various litigation matters.
Epstein was a member of the book publishing committee of the ABA section of litigation and the editorial board of the magazine`s section. This article was published in the June 2018 issue of ABA Journal entitled “Rethinking Woodshedding: Trust clients and let them speak free, but care, when witness.” Oh, you probably think: it`s far too simple and too simple.