Delaware Trial Handbook § 13:3. CONFERRING WITH COUNSEL DURING TESTIMONY

The ability of a witness to confer with counsel during the course of his or her testimony will depend upon the timing of the requested conference and the nature of the proposed conversation. Once the witness has taken the stand and has begun to testify in chief, a court can preclude examining counsel from stopping the interrogation to confer with the witness.11 Such a decision is within the discretion of the court, however, and a court may permit such a conference in the appropriate case if it will assist in the efficient presentation of evidence. Even where permission is granted for such a conference, counsel should think carefully about the advisability of such a conference and the impression it may make on the trier of fact.

As to the right of a party-witness to confer with counsel about the testimony during breaks or recesses in the direct testimony of that witness, courts may be influenced by the rules discussed below relating to limitations on the ability of a party-witness to confer with counsel during breaks or recesses in cross-examination. Such rules, however, should not be applicable to breaks in direct testimony. The purposes served by direct examination and cross-examination are different. Generally, direct examination serves to present evidence, while cross-examination serves to test the reliability of that evidence. While there may be a concern about a lawyer coaching the witness during cross-examination to provide a certain response to the questions asked by the cross-examiner, such concerns are not present during direct examination. A conference between a party-witness and counsel during a break or recess in direct examination is, in effect, no different than a conference between the lawyer and the witness prior to the direct testimony of the witness, which is commonplace.11.1

Once direct examination of a witness is concluded, the court may prohibit a witness from conferring with counsel about the substance of the upcoming (if after direct examination  has concluded but before cross-examination has commenced) or ongoing (if after cross-examination has commenced) testimony.12  At that point, an instruction by the court to the witness not to communicate with counsel directly or indirectly regarding the case or the testimony during a brief recess does not violate the right of an accused in a criminal case to the assistance of counsel. The matter remains, however, within the discretion of the court as to whether to permit discussion of matters unrelated to the testimony or even to permit discussion relevant to the testimony.13 Where the recess is lengthier – overnight, for example – a judge’s discretion to prohibit communication between a party-witness and counsel is more restricted. Because of the right of and need for an accused in a criminal action to communicate with counsel throughout the trial,  the judge may  not prohibit a party-witness from  all communication with counsel, but can only bar communication regarding the substance of the testimony.14

These rules have developed in criminal cases and are grounded in the right of a criminal defendant to counsel. Although it is recognized that a litigant in a civil action has the right to be represented by private counsel,15 courts in other jurisdictions are split on the issue of whether the constitutional limitations on a judge’s ability to bar attorney-witness consultations are applicable in civil cases.16

Once cross-examination is complete, the principles applicable to attorney-witness conferences during direct examination should apply equally to redirect examination. While a judge may preclude such conferences during the course of the redirect testimony, the attorney and witness should be able to confer after cross-examination but prior to redirect examination, as well as during any breaks or recesses during such testimony. Past practice has had judges granting requests for recesses immediately after cross-examination  to permit the attorney and  witness to consult regarding the redirect testimony. Even where such recesses are granted, counsel may wish to consider whether the need to blunt any impact of the cross-examination requires immediate response, rather than having a recess and allowing the jury possibly to be affected by the cross-examination.

The limitations discussed above arise out of the concern that a party should have the right to confer with counsel throughout a trial. Such concerns are not present when the witness is a non-party. In that circumstance, a judge may have greater discretion to limit discussions between the witness and counsel until all sides have finished their examinations of the witness.17

11. See Rogers v. Fenimore, 41 A. 886, 887 (Del. 1898).

11.1.  Compare Levey v. Brownstone Asset Management, LP, C.A. No. 5714-VCL, tr. at 286, Laster, V.C. (Del. Ch. Feb. 14, 2014) (transcript) (applying rule to allow witness to consult with counsel during overnight break in direct testimony) with MCA Inc. v. Viacom, Inc., C.A. No. 14971, tr. at 113-14, Steele, V.C. (Del. Ch. Oct. 15, 1996) (transcript) (stating that in the absence of prior agreement of the parties, once a witness is under oath in direct testimony, and the questions have gone beyond introductory matters to matters of substance, the witness is deemed subject to cross-examination, and may not discuss with counsel during any breaks the subject matter of the examination, whether or not it has been raised yet in direct testimony).

12. Bailey v. State, 422 A.2d 956, 961 (Del. 1980); In re Asbestos Litigation, 492 A.2d 256, 258 (Del. Super. 1985).  By analogy, during breaks in a deposition, counsel for a deponent may not confer with the deponent about the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether or not to assert a testimonial privilege or how to comply with a court order.  This rule does not apply, however, when the deposition has been recessed or continued for more than five days.  Ch. Ct. R. 30(d); Super. Ct. Civ. R. 30(d); Comm. Pls. Ct. R. 30(d).

13. Perry v. Leeke, 488 U.S. 272 (1989).

14. Geders v. United States, 425 U.S. 80 (1976); Webb v. State, 663 A.2d 452, 455-60 (Del. 1995).

15. See § 1:5.

16. Contrast Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1118 (5th Cir. 1980), cert. denied, 449 U.S. 820 (1980) (cited in In re Asbestos Litigation, 492 A.2d 256, 258 (Del. Super. 1985)); Cartin v. Continental Homes of New Hampshire, 360 A.2d 96, 98 (Vt. 1976) (finding the constitutional rules apply in civil cases) with Stocker Hinge Mfg. Co. v. Daniel Industries, Inc., 377 N.E.2d 1125, 1133-34 (Ind. App. 1st Dist. 1978) (rejecting application to civil actions). See also Aiello v. Wilmington, 623 F.2d 845, 859 n.28 (3d Cir. 1980) (raising but declining to address the issue).

17. Cf. Geders v. United States, 425 U.S. 80, 88 (1976).  See also North America Philips Corp. v. Aetna Cas. and Sur. Co., C.A. No. 88C-JA-155, slip op. at 13, Bifferato, J. (Del. Super. Apr. 23, 1995) (permitting party to consult with expert during four-week break in testimony, relying by analogy on Superior Court Civil Rule 30(d)(i), which permits a deponent to speak with counsel if there is a break of over five days).

© 2014  David L. Finger