The limits of witness preparation in German court and arbitration proceedings

Publication November 2016


Introduction

The extent to which witness preparation is permissible in German civil proceedings has been the subject of intense discussions following a controversial recent case involving a major German bank. The German authorities went so far as to initiate a criminal investigation against the bank’s former CEO, and four other former bank officials on grounds of alleged fraudulent conduct in court. These witnesses had been prepared in a mock trial and written answers had been drafted by their lawyers.

Strong public feelings about this case might create the mistaken impression that the German law prohibits witness preparation per se. Statutory guidelines on this issue which would be of practical relevance for civil proceedings as well as for arbitration proceedings are, however, largely absent in Germany and other civil law jurisdictions. In contrast a limited set of professional guidelines can be found in several of the main common law jurisdictions.

As a result, it is open to question at what point a lawyer crosses the line between the legitimate developing of a testimony so it will be effective and telling the witness what to say. In particular, it is questionable whether: a lawyer is permitted to hold a practice run with a witness; agreements regarding witness remuneration are allowed; and to what extent the opposing lawyer or judge may question a witness on the extent of his prior preparation. Having regard to US law studies, some conclusions can be drawn following the rule “everything which is not forbidden is permitted”.

Witness preparation in civil proceedings

In German civil proceedings witnesses are supposed to testify only according to their “vivid memory”, in order to give their best evidence at the hearing. With regard to witness credibility it is therefore advisable not to get in touch with witnesses before their testimony. However, the German Code of Civil Procedure encourages witnesses to prepare for giving evidence by refreshing their memory – if possible – by going through their records and documents. Hence, presenting well prepared witnesses at court hearings can further the principle of establishment of the truth in civil proceedings. The lawyer can therefore question the witness prior to his testimony in order to explore the whole truth and all necessary information for the court proceedings. Previously, the German Professional Guidelines contained a broad prohibition on witness preparation which can create the appearance of an influenced witness. This provision was abolished by the Federal Constitutional Court in 1987. Since there are merely ethical but no statutory provisions limiting the lawyer from preparing the witness before a deposition, it appears likely that witness preparation is legally permissible in Germany. The only sanction a lawyer faces is a possible criminal prosecution for intentionally inducing a witness to give a false testimony.

In European civil law jurisdictions only the Swiss Canton of Geneva prohibits the lawyer from discussing the witnesses future testimony and from influencing witnesses of any kind. In England and Wales, a common law jurisdiction, witness coaching is prohibited. The Court of Appeal has stated that “the witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations.” In contrast, lawyers are permitted to ‘familiarise’ witnesses with the process of the trial and giving evidence. Therefore witness training and mock trials are only legitimate if they are not in reference to the specific case, although in a recent Commercial Court case, the judge commented that even witness training is to be discouraged since it tends to reflect badly on the witness who, perhaps through no fault of his or her own, may appear evasive because he or she has been “trained” to give evidence in a particular way.

In the US, professional rules normally permit witness preparation on the basis that it can help the witness to give truthful evidence in favour of the lawyer’s client. In addition, there are a handful of decisions from the US Supreme Court and other state courts acknowledging the legitimacy of witness preparation and coaching, as long as the witness is not induced to give a false testimony. Witness preparation is typically protected from discovery under the work-product doctrine or the attorney-client privilege. Therefore the court or the opposing party are in principle only entitled to question whether a witness has been prepared for the deposition, while the substance of the witness preparation itself is protected under US rules of privilege. In Germany however, there is no equivalent privilege. Only the lawyer is entitled to refuse to give evidence.

Witness preparation in arbitration proceedings

The issue of witness preparation is of special interest for arbitration proceedings, since there is generally no obligation for witnesses to testify in arbitration proceedings (unless one of the parties applies for a judicial interrogation of the witness, which rarely occurs).

For Germany-seated international arbitrations there are no statutory provisions regarding witness preparation equivalent to civil proceedings. The only limitations arise from contractual agreements or procedural injunctions, which are rare.

It has become common in arbitration proceedings to present written rather than oral testimony. There is no statutory provision preventing the lawyer from preparing the written testimony of the witness, as long as he is convinced that the written testimony is true. Furthermore, there is no obligation for the written testimony to be complete in every respect. It is permissible to use a witness testimony to contest only certain allegations of the opposing party.

The question of the remuneration of a witness is crucial in arbitration proceedings since there is no duty to testify for the witness and no right of reimbursement of expenses. Witnesses in arbitration proceedings often work in high-ranked positions and are well-paid. It is therefore usually regarded as permissible to remunerate a witness in arbitration proceedings to the amount of his normal wage including preparation and travel time. To preserve the credibility of the witness it is advisable to remunerate him or her prior to giving evidence.

In the US, a comment to the Model Rules of Professional Conduct of the ABA suggests the prohibition of remuneration of witnesses, since the law obliges witnesses to answer truthfully. There is case law in which the courts have dismissed the witness or disqualified the lawyers involved in the case.

Summary

In Germany as in the US, witness preparation in civil proceedings as well as in arbitration proceedings is per se legitimate. Neither statutory provisions nor professional guidelines prohibit witness preparation, although it is possible that the German legislature will enact new provisions on witness preparation in the future. At present, it is left to the criminal law to penalise lawyers for intentionally inducing witnesses to give a false testimony and witnesses for perjury. Accordingly, it is not surprising in the recent bank case that witness preparation was held to be legitimate. Furthermore, the high-ranked bank’s employees have been cleared of all criminal charges, since it could not have been proven that they intentionally made false statements before the court.In contrast, the applicable rules in England and Wales are tougher, as witness preparation is unlawful.

With regard to arbitration proceedings there are currently no general regulations – lawyers will be bound by the conduct rules governing where they are admitted to practise.


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