Can Attorneys have Conferences with Their Clients During Testimony?
Since first practicing law, I have heard many attorneys and judges caution witnesses or parties about conferring with their attorney during a break in their testimony. In fact, I have had judges actually instruct me to not communicate with my client during such trial or hearing breaks. On each occasion, I have responded to the judge’s instructions that my client has an absolute right to confer with counsel and have asked the judge about the basis for the instruction. If you don’t do this, then there is no basis for appealing. Several judges have backed down, but others seem to have no idea what the basis is for such instruction.
I’m here to tell you that there is no basis for such an instruction. In fact, there are several cases which you should always have in your trial notebook that say the exact opposite. Absent some type of collusion or improper behavior, lawyers always have the right to confer with their clients during breaks.
The best decision to have in your pocket or trial notebook is the case of Potashnick v. Port City Construction Company, 609 F.2d 2nd 1101 (5th Cir. 1980). The opinion, written by Judge Fay says: “…The 2nd ground for reversal stems from the application of the trial court judge’s rule prohibiting each witness from conferring with his or her attorney during breaks and recesses in the witness’s testimony…. …Because the prohibiting of communication between a testifying party-witness and his attorney during an overnight recess in the party witness’s testimony impinges on the constitutional right to counsel, we are compelled to reverse.” The opinion goes on to say: “recognizing that a civil litigant has a constitutional right to retain or hire counsel, we hold that judge Hands rule prohibiting a litigant from consulting with his attorney during breaks and recesses in the litigant’s testimony impinges upon that right.”
This federal decision as been cited by Florida courts has support for this concept. The 3rd District Court of Appeal in the case of Break v. Murphy, 749 So.2d 1278 (Fla. 3rd DCA 2000) stated: “…if the court or the opposing litigant desires to limit or prohibit discussion between a party and his or her counsel during a recess and testimony, then those ground rules should be established at the start of trial or at the time the recess is taken.” The opinion then cites Potashnick as support for the position that restricting a witness and their counsel is grounds for reversal. Another case in support of this proposition is Haskell Company v. Georgia-Pacific Corporation, 684 so.2d 297 (Fla. 5th DCA 1996). This case holds that a party who sees another party conferring with counsel during a recess in the party’s deposition may not ask the witness what was discussed with his attorney.
Keep all of these cases with you at trial or hearings and always be familiar with them during depositions. Challenge lawyers who try to assert that you don’t have the right to confer with your client on any issue. In the absence of impropriety or specific grounds to believe that you are coaching your client, a judge should not preclude you from such mid-testimony conferences or meetings. Additionally, never let opposing counsel bluff you into thinking you don’t have such rights.
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