Something You Can (and Should) Do That Your Lawyer Cannot

There are few things that you, as a plaintiff, can do that your lawyer cannot. One notable exception is directly communicating with a defendant who is represented by counsel. Your lawyer is prohibited from this form of communication by ethics rules, and I absolutely do not recommend you engage in this form of communication, either. However, the ethics rules also prohibit another type of communication by lawyers which I highly recommend that you, as a plaintiff, engage in. That is the subject of this article.

Tell Your Friends and Co-Workers Not to Talk To the Defense Lawyer

Even though they may know nothing about your accident, your friends, family and co-workers can be witnesses to your lawsuit due to their knowledge of how you were both before and after the accident. They will usually know of prior medical issues and accidents, pre-existing conditions, and how the accident has affected your life.

Lawyers are generally prohibited by their ethics rules from telling witnesses not to speak to opposing counsel. The model ethics rule (upon which most state bar ethics rules are based) states, in pertinent part, as follows:

Rule 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

****************

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

So, while your lawyer can tell your family and employees not to talk to opposing counsel (as long as it doesn’t adversely affect them), he cannot give that same advice to your friends or co-workers. In fact, ethically he shouldn’t tell you to pass this advice along to them, as you would then become his agent in making this unethical communication (landing your lawyer, not you, in hot water).

Luckily, as a party (not a lawyer) you are not bound by this ethics rule and you won’t get yourself or your lawyer into any trouble if you, all on your own, tell your friends and co-workers not to talk to the defense lawyer. Even though I’m a lawyer, I can tell you this is a smart thing to do because I’m not your lawyer (you’ve got to love those technicalities). In addition to warning your friends and co-workers not to talk to opposing counsel, you should probably also take it upon yourself to give this advice to family and, if you have any, employees, just in case your lawyer doesn’t.

Keep in mind that you should not ask your lawyer if you should do this, and you should not tell him in advance that you’re going to do it. This is not to be sneaky or underhanded (or because your lawyer wouldn’t want you to do it). It is to protect your own lawyer from a possible ethics complaint. Again, there is no way that you, as a party, will get in any trouble for passing this advice to friends and co-workers. However, your lawyer could possibly get in trouble if he knows that you’re going to do it and doesn’t try to stop you. So, protect your lawyer by keeping him in the dark on this one thing (I advise full disclosure on everything else).

Why Should I Tell Witnesses Not to Talk to the Defense Lawyer?

Why would you want to tell people who like you, and in some cases, love you, not to talk to opposing counsel? They’ll just help your case and back you up, right? Wrong. They will intend to help your case and back you up, but if they make a mistake (either through confusion, faulty memory or being tricked) they may accidentally contradict you and badly hurt your case.

The last thing you want is opposing counsel (or his investigator) to have unfettered access to your friendly witnesses. Why make the defendant’s job cheaper and easier, when you can make it more expensive and harder? This is litigation — not a friendly game of checkers.

Settlement tip

How the Defense Will React to Your Witnesses Refusing to Speak to Them

Let your witnesses know that, in all likelihood, the defense will threaten to subpoena them for a deposition if they don’t talk voluntarily. A majority of the time, this will merely be a bluff. The defense does not want to incur the costs (don’t forget that they pay their lawyers by the hour) of numerous depositions of people who will almost always support your case, on the off chance that one will be unprepared and may hurt you.

Even if they do choose to depose some of these witnesses, you’ll know (1) exactly who will be deposed, (2) where and when the deposition will take place and (3) exactly what your witnesses are telling the other side. Plus, your lawyer will be there to prevent improper or misleading questions. Most importantly, your lawyer can speak with these witnesses right before their depositions and make sure everybody is on the same page. This is far preferable to not knowing with whom the defense plans to speak, how the questions were asked, and what your witnesses said.

Settlement tip

The defense usually decides which of your friendly witnesses it wants to depose through this process of informal investigation and interviews — of course they will pick anyone who may hurt your case. If you take away their ability to investigate before the depositions, they are left in the dark and have no idea who to depose. So, they can either (1) spend a lot of time and money deposing a bunch of people who will probably help your case, (2) pick randomly in the hopes of finding a witness who will hurt you, or (3) just leave your friendly witnesses alone. No matter which option they choose, you win.

To avoid one or more of your witnesses speaking to opposing counsel due to a threatened deposition, be sure to pre-emptively inform them of this threat and the fact that it is likely hollow. Also, let them know that even if they speak to the defense, they can still be deposed. In fact, it is more likely that they will be deposed if they speak to the defense. Most lawyers will assume that witnesses who don’t want to talk to them are planning to help the other side. By not talking to the defense, your witnesses can conceal who among them might not be the best witness.

Is This Advice Unethical or Immoral?

This advice is neither unethical nor immoral. The lawyers’ ethics rules don’t apply to the parties (plaintiff or defendant). Also, the ethics rules are not a code of morality. There is nothing morally wrong with making the defense’s job harder, or protecting your friends — and your lawsuit. It is simply good strategy. If the defense really wants to talk to your witnesses, it can depose them (and eat those costs). Do you think the defense would balk at an opportunity to make your lawyer’s job more difficult?

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