Closely Coached Witnesses - Juries Smell It

As usual, there is plenty of ranting about those closely coached witnesses. For example, both Eric Turkewitz of New York Personal Injury Blog and Walter Olson on Overlawyered.com cover an especially egregious instance in a medical trial.

So?  Okay, all that coaching and all that expert testimony tailored to rebut that of the other side's cost a lot of money.  That in itself is horrific because the cost of a trial is now beyond the means of many plaintiffs and defendants.  Mike Nilan of Halleland Lewis Nilan & Johnson, who represents Millennium Holdings in lead-paint litigation, always notes that justice that's unaffordable is justice denied.

But, how much of this coaching is credible to jurors?  In interviewing jurors and in reading about other journalists' and attorneys' interviews with jurors, I found that they can smell a closely coached witness a mile away.  For instance, in the Rhode Island lead paint public nuisance trial II, the jurors I interviewed found the historians who presented themselves as objective as not at all credible.  They put the most stock in the medical doctors who seemed they would rather be back in the hospital tending to patients.

If a heavily coached witness does pass the smell test, then any good lawyers could blow them up in cross-examination.  That's exactly what Mickey Pohl of Jones Day, who represents Sherwin-Williams in RI II, did with the two historians.  [You can read through that cross on my other blog under "legal."]

In addition, being a mouthpiece for one side can catch up with these sorts of witnesses.  Their professional reputation can be damaged beyond repair.  Few aren't aware of this side job of moonlighting as expert witnesses for about $600 an hour, including the hours spent in depositions. Out of envy or ethics or both, they might seek to punish the moonlighter.

But the most important thing is: Jurors know. They really do. That's probably why there are so many mistrials and acquittals.  All that coached testimony confuses the jurors and doesn't provide enough factual information from which they can make a decision.  I suspect that was exactly the situation in the mistrial for Phil Spector. Every witness was there to play a role.  In the "Thomas" lead paint trial last fall in Milwaukee, Wisconsin, the jurors complained about the poor quality of testimony.  They wanted information, interpretations and insights which would help them do their duty and come up with a verdict.

What should be done about this coaching to save money and help jurors out? 

In medicine they are experimenting with assigning an expert to a case without informing that expert if he or she is to represent the plaintiff or the defense. I wonder why that practice hasn't become standard since medical testimony is so key in trials.

There is also the recommendation of a cap put on what expert witnesses can be paid.  You bet, the pool of them will be diminished.

Another suggestion is to limit the amount of coaching or to eliminate it entirely.

Also, in some states the courts are allowing jurors to pose questions to the witnesses.  That innovation in itself can discourage a lot of bad acting.