Attorney Caught Coaching His Witness Under The Table

By Richard B. Gullen

October 4th, 2016

We've all seen friends or relatives "getting kicked under the table" by someone signaling them that they're making inappropriate comments and they need to shut up.

Recently, though, I saw someone take this move to another level entirely: my client caught an attorney tapping his client's foot under the table while I was asking his client questions in a deposition.

Here's what happened. I was deposing my client's former pastor/business partner, who we allege defrauded my client into investing a couple hundred thousand dollars to construct classrooms for a daycare center business at his church (even though the pastor knew the city had already rejected the site for daycare center operations).

During the first break we took, my client told me that whenever I asked a tough question, the attorney would "tap" his client. I said she must be mistaken, because I was sitting right there and didn't see anything. No, she said - he was tapping his client's foot with his shoe under the table. She could see it because she was short and sitting slightly away from the conference table. I said I would admonish the attorney on the record, but without corroboration, there was nothing we could really do.

Then she said, "Oh, but see, I took a photograph."

Proof

Back on the record with the court reporter, I produced the photo and had it marked as the next exhibit. I then described what my client had just witnessed, accused the attorney of outrageous wrongful coaching, and instructed that for the rest of the deposition, opposing counsel and his client's chairs must be separated so their feet could not touch. When confronted with the photograph, the attorney and his client stupidly began giggling, which opened the door for me to add "Let the record reflect that the attorney and the witness are laughing at the photograph and their unethical conduct".

I had expected the attorney to deny wrongdoing and put a plausible spin on his behavior by claiming something like "That photo doesn't prove I was coaching the witness - it just shows our shoes happening to touch at a given moment. So what?" Instead, the attorney replied, "Well, uh, your question was ambiguous, and, uh, I wanted to make sure I could object before my client began to answer, and...uh, well ..." Apparently realizing he had just admitted to unethical secret signaling, he stopped talking and muttered, "Go ahead."

To make matters worse, this attorney's "explanation" made no sense. It's perfectly fine for the defending attorney to put up a hand or make some other signal in full view while his client is being asked a question to signal the client to remain silent for a moment once the question has been completed because the attorney intends to state an objection for the record. This type of signaling is ethical and necessary because often a witness will blurt out an answer before, or immediately after, a question is completed, thereby making it impossible for their attorney to object before the client's response has been heard and recorded. Here, the attorney's explanation is also absurd because the testimony was being translated from Mandarin which gave the attorney all the time in the world to object before any answer was translated into English.

You might think since I and my four partners have a collective 146 years of experience in litigation we could say by now "We've seen it all", but this story made everyone's jaw drop. Until now, we had never even heard of, much less seen photographic evidence of, such a brazen example of witness-coaching. Who knows what secret code they had worked out? Maybe it was one tap for "no," two for "yes," three for "I don't remember," four for "don't say a word"?

If there's a hall of shame for unethical lawyers, I have a new nominee for membership, and I imagine the California State Bar would agree. If opposing counsel is reading this article, consider this notice that I'll be filing a motion for the appointment of a discovery referee to monitor future depositions at your client's expense, and for monetary sanctions against both you and your client.

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