November 30, 2018 Practice Points

Call Me Maybe?—Preserving the Ability to Talk with a Client During a Civil Trial

Regardless of general prohibitions, constitutional protections may allow an attorney to confer with a client during lengthy civil trial recesses

By Travis S. Hunter

The client witness can present a number of concerns during a civil trial. One issue that is often overlooked is the timing of the client’s testimony. Consider the circumstance of a client who starts testifying on Friday and does not finish before the weekend. This can create concerns because many courts have rules prohibiting witnesses from conferring with attorneys while the witness is testifying—particularly if the witness is currently being cross-examined. See, e.g., Bailey v. State, 422 A.2d 956, 961 (Del. 1980); In re Asbestos Litigation, 492 A.2d 256, 258 (Del. Super. 1985). Prohibiting a client from talking with his or her attorney over a weekend recess, however, raises constitutional concerns.

While case law in the area is scarce, the right of a civil litigant to be represented by retained counsel, if desired, is recognized. Anderson v. Sheppard, 856 F.2d 741, 747 (6th Cir. 1988) (citing Goldberg v. Kelly, 397 U.S. 254, 270–71 (1970); Gray v. New England Telephone & Telegraph Co., 792 F.2d 251, 256–57 (1st Cir. 1986); Indiana Planned Parenthood Affiliates Assoc. v. Pearson, 716 F.2d 1127, 1137 (7th Cir. 1983); Martin v. Lauer, 686 F.2d 24, 32-33 (D.C. Cir. 1982); Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1117–19 (5th Cir. 1980)).

Accordingly, many courts have concluded that attorney-client consultation with a party witness during an overnight break should not be prohibited. See Geders v. United States, 425 U.S. 80 (1976). Numerous appellate courts have flatly rejected any limitations on counsel during weekend recesses. For example, in United States v. Cobb, 905 F.2d 784, 792 (4th Cir. 1990), the trial court’s order prohibited the defendant from discussing his cross-examination testimony with his attorney during the weekend recess. On appeal, the Fourth Circuit had “no difficulty in concluding that the trial court’s order, although limited to discussions of Cobb’s ongoing testimony, effectively denied him access to counsel.” Id. Other courts have reached similar conclusions. See Mudd v. United States, 798 F.2d 1509 (D.C. Cir. 1986) (prohibition of discussing testimony over weekend “can have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court’s directive”); see also United States v. Johnson, 267 F.3d 376 (5th Cir. 2001) (weekend prohibition); People v. Johnson, 84 N.Y.2d 995 (1994) (same).

Notably, many state courts have not yet had the opportunity to resolve this issue in the context of civil cases. In Delaware, for example, the Supreme Court has not addressed the issue in the civil context, nor has the issue been expressly resolved in the criminal context. Rather, the Court has acknowledged Cobb, but expressly refrained from resolving this issue, instead suggesting that trial courts “will, when feasible, manage the scheduling of trial testimony so that long recesses are avoided.” Webb v. State, 663 A.2d 452, 460 (Del. 1995).

Given the state of the law in many jurisdictions, counsel for individual defendants in civil cases would be wise to monitor this issue and seek permission from the court to discuss various matters with the client during lengthy recesses.

Travis S. Hunter is an attorney at Richards, Layton & Finger, P.A., in Wilmington, Delaware.

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