How Not to Lose the Winning Witness: Ethical Considerations in Working with Employee and Former Employee Witnesses

It’s really important for trial lawyers to choose the right witnesses for their case. This article focuses on employee witnesses, who can have a big impact. There are a lot of things to be careful about when dealing with these witnesses, and making a mistake can have serious consequences. It’s important to know the rules before talking to an employee witness. Simply put, if you’re dealing with a current employee of a company who has a lawyer, you can’t talk to them about the case without the company’s lawyer’s permission. But if the person used to work for the company, it’s okay to talk to them about the case without the company’s lawyer’s permission. This is because former employees can’t make the company do things, so it’s not a problem to talk to them. If a lawyer wants to talk to someone who used to work for the other side, they can’t try to get any secret information, and they can’t talk to them if they already have a lawyer. They also have to be careful about talking to current employees of the other side, especially if they have a high-up job or were involved in the lawsuit. It’s complicated, but there are rules to follow. In the case Lee Memorial Health System v. Smith, the court had to decide if a lawyer could talk to doctors who worked for the hospital where the lawsuit was taking place. The court said it was okay as long as the doctors didn’t have anything to do with the lawsuit and weren’t being represented by the hospital’s lawyers. In another case, the court allowed interviews with employees of the Department of Corrections, but with some restrictions. The interviews had to be limited, and the employees couldn’t disclose certain information. This made sure that the interviews were fair and that the information gathered could be used in court. It is important for lawyers to be careful about contacting people who are already involved in a legal case, even if the person reaches out first. If a lawyer is allowed to talk to a witness, they may be able to pay the witness for their time and help. But the payment can only be for things directly related to the legal case, like preparing for or testifying in court. Some lawyers might try to pay a witness for their help by calling them a consultant instead. This is not allowed and can get the lawyer in trouble. In one case, a lawyer paid a witness a lot of money for their help, and the court said this was not okay. The lawyer got in trouble and was suspended. Another problem is when a witness has important documents. Even if the documents help your case, it’s not okay to accept and use them. If you get a document that has private information or was supposed to be kept secret, you shouldn’t use it. If you do, your lawyer could be kicked off the case. It’s best to follow the proper rules for getting information in a legal case, even if it takes longer. If a lawyer does something wrong when talking to a former employee of the other side, they could get in trouble and face serious consequences like not being allowed to use the information they got from the employee as evidence. But if the lawyer really didn’t know they were doing something wrong and tried to follow the rules, they might not be in as much trouble. But even if the lawyer doesn’t get in trouble, their client could still suffer because they won’t be able to use important evidence in their case. Lawyers work hard to find witnesses and get important testimony for their clients. When the opponent is a business, the best witnesses are usually current or former employees. But lawyers have to make sure they don’t do anything unethical when talking to or getting information from these witnesses. If they do, it can lead to big problems like the witness not being allowed to testify or the lawyer getting in trouble.

Source: https://www.floridabar.org/the-florida-bar-journal/how-not-to-lose-the-winning-witness-ethical-considerations-in-working-with-employee-and-former-employee-witnesses/