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In Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024)(per curiam), plaintiffs’ slip and fall claim was dismissed with prejudice, and attorneys’ fees were also awarded, due to improper testimonial coaching during a virtual trial.  The coaching was accompanied by a misrepresentation to the court.

One lesson from Hernandez is that, if you are going to engage in improper, virtual witness coaching, make sure it isn’t being recorded and that several other people, including opposing counsel and a court clerk, aren’t listening. 

The misconduct here reminds me of G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), where the takeaway was Don’t Spoliate Evidence That’s Been Photographed.

There is an ABA Formal Opinion on Misconduct in Virtual Depositions, and this is not the first instance of improper coaching in deposition or trial: “My legal ethics professor said that the best thing is to do the right thing for the right reason.  The next best thing is to do the right thing for the wrong reason.  Surreptitiously feeding your client answers to deposition questions in a remote deposition should be avoided because it is wrong.  And, you’re likely to get caught.”  Id.

That’s what happened in Hernandez.  The plaintiffs were a married couple, one of whom had fallen, allegedly on defendant’s property.  The case was being virtually tried to a jury.  Both plaintiffs were in the same room while testimony was taken.  The issue was liability.  One factual issue was where one plaintiff had slipped and fallen.

Ms. Hernandez’s husband spoke and the trial judge directed that he stop, admonishing that: “Nobody can be telling Ms. Hernandez what to do.”

During testimony, Ms. Hernandez was having trouble manipulating a cursor and there was a lunch recess.  Earlier, plaintiffs’ counsel had told the court that he would not talk with Ms. Hernandez even if they broke for lunch.

However, during the lunch break plaintiffs’ counsel engaged in a lengthy discussion of the merits with them.  Id. at *2.  In part, counsel said to Ms. Hernandez: “Does [the photo] show – does it fairly and accurately show the way the restaurant looked on the day that you fell? Yes. You must say that or the picture cannot be good. Okay? So, I want you – and the answer has to be, yes, because if you say, no, we can’t do it…. So, after we identify the bench, I’m going to put the [cursor] right here now and say, do you see the area where you fell? Yes. Okay. Now, how do I have to move the – you – because it has to be her voice. How do I move the cursor to find the place where you fell?….”

The lengthy discussion was recorded:

The judge explained “Courtsmart … was not running …. [h]owever because judiciary staff was in the courtroom, the[ ] back-up recording system … [was] running …. [and] record[ed] the dialogue between (p)laintiff[s’] … trial counsel … and (p)laintiffs.”

Id. at n. 2.

Several people heard the conversation.

After the recess, “defense counsel advised that plaintiffs’ attorney’s microphone was on during recess and he ‘listened to [plaintiff’s attorney] coaching the witness with the witness’ husband.’” Defense counsel requested a mistrial.  Id. at *3.

The Court wrote:

In response to the trial judge’s question regarding whether “there was any additional coaching to the witness” “during the … break,” plaintiffs’ attorney stated that he “did show the witness the scenario of moving the cursor along the exhibit.”

The court declared a mistrial.

On the subsequent motion for dismissal with prejudice, the Court added:

[A] court clerk and two bilingual paralegals from defense counsel’s office heard the recess conversation. Therefore, in addition to the transcript of the conversation, [the trial judge] considered the [fact] that “the court clerk confirmed that [plaintiffs’ attorney] was attempting to facilitate a response to generate a factual possibility of liability.” Moreover, [the judge] noted one of the paralegals certified that “Hernandez state[d] that she thought she tripped by the bench when shown a photo by [plaintiffs’ attorney] pointing out where she fell.” Further, the other paralegal certified that she “heard [Hernandez] state that it had been so long she didn’t remember where she fell, which had not been interpreted by the court supplied interpreter.”

The trial court wrote that  “the conduct of the attorney here to invite a client to state that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to present to the finder of fact. The well of information that could be presented to the jury has been forever poisoned….  The directive from her trial attorney was clear: ‘this is where you fell.’ The directive was not for

laintiff to testify as to ‘where you know that you fell or answer that you do not know.’ The directive was to create a falsity and commit fraud on this court. Such is not tolerable. The bell cannot be unrung….”

The appellate court affirmed:

In determining culpability, the judge described the evidence as “unambiguous.” She found plaintiffs’ attorney provided a directive to Hernandez, regarding the location of the accident despite Hernandez having “no independent recollection” of where she fell. Moreover, the attorney’s actions followed the judge’s warnings and corrective instruction involving Pereyra’s[1] coaching Hernandez on this same subject. Plaintiffs’ and their attorney’s culpability are firmly established.

Further, plaintiffs share the blame in the fraud. Pereyra, despite instructions from the judge, coached Hernandez during trial and recess regarding the purported location of her fall. In addition, neither Pereyra nor Hernandez resisted their attorney’s coaching. Instead, they were willing participants in a scheme to provide false testimony in an ongoing trial.

Moreover, plaintiffs’ and their attorney’s actions “prejudice[d] … the judicial process and the administration of justice.”… Prejudice is self-evident when an attorney directs a client to testify to the location of an accident when the client has no independent recollection. From that point forward, Hernandez’ every utterance was suspect and her case, the “judicial process,” and “the administration of justice” were “poisoned” and “tainted” as a result.

Further, in light of the misrepresentation to the court, the public interest was served by dismissal.  Id. at *7.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

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[1] Mr. Pereyra was Ms. Hernandez’s husband and a co-plaintiff.

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