Chapter 26 – The Unethical Paying of Witnesses

I’ve reviewed a number of documents providing wonderfully written detail on this topic. I would like to particularly reference an article written by MARCELLUS A. McRAE and KIM NORTMAN, which you can find here McRaeNortman-YourWitness.

Section 201(b)(3)of the federal antigratuity statute makes it a crime to corruptly give, offer, or promise anything of value to any person with intent to influence that person’s testimony under oath in a trial, hearing, or other proceeding. A person who violates this statute may be fined, imprisoned, or both.

Two of the witnesses we talked to have admitted that they were paid for call center consulting services as it applied to Dialer technology. Both also admitted that they followed a very specific script outlined by SVB counsel and the point of that script was to challenge the materiality of the “line to agent ratio” incorporated into our contract. In so far as Weishaupl needed that perjurious testimony to rewrite the contract, it stands to reason that SVB counsel was informed of the mandate before the trial began.

Parties and their counsel may be subject to civil and criminal sanctions for running afoulof the laws regulating the payment of fees to fact witnesses. Possible civil sanctions for paying a witness a fee for testifying or paying a witness an unreasonable amount span the full range available for discovery violations, including 1) the exclusion of the testimony of the witness who received improper payments, 2) an award of attorney’s fees and costs to the opposing party, 3) mistrial, and 4) disciplinary action by the state bar. In addition, federal and state law set out criminal sanctions.

In addition, Section 201(c)(2) makes it a crime to give, offer, or promise anything of value to any person, for testimony under oath. A person who violates Section 201(c)(2) “shall be fined under this title or imprisoned for not more than two years, or both.”

The American Bar Association also offers some guidance on this part by Promulgating Model Rules of Professional Conduct. Quoting from an article written by David R. Singh & Brenna L. Trout,”…From the language of these rules, it is clear that an attorney cannot engage in subordination of perjury or the creation of false evidence. However, neither the Model Rules nor the Restatement provides any specific guidance regarding when witness preparation crosses the ethical line. One gray area arises when the lawyer knows, under the applicable law, what testimony would be best from a witness, and must make a determination regarding how best to explain the law to the witness—can an explanation of the applicable law constitute counseling a witness to testify falsely? This dilemma, which attorneys frequently confront in fulfilling their professional obligation to prepare witnesses, but which is seldom discussed in case law because the details of witness preparation are generally not discussed publicly, is addressed in the next section.” ethical_witness_prep.authcheckdam

However as noted in a previous post there are perjury statutes for witnesses but essentially none for the attorneys advising them. My guess is the ABA Model of Professional Conduct is rarely followed. And although attorneys may be free to lie or coach their witnesses to lie with little risk of sanction, it is not the job of a Judge or Arbitrator to lap it up.

In our arbitration against M there was an alarming amount of intentionally misleading testimony by Marshal’s expert. At one point it was clear they were engaging in nothing more than hypothetical tampering of hard drives while intimating that we did that and later during cross examination admitting that there was no such evidence. When an attorney intentionally puts on false testimony and the expert is also knowingly engaging in this, they both are committing a crime. Why then did Crow lap this up?

Who was Crow doing a favor for, if not for himself? Was he trading this arbitration for beneficial treatment in other cases and for his firm, which at the time was Schwabe? Is this really what the judicial process has become? Do we want to fix it? I do.

I am happy to announce that the screen play based on this arbitration is in its final stage of editing. Soon this will have a larger voice. And as of right now there is both a fiction version and one based on a true story with no hedging on names, places and process.


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