Cates addresses 'frequent concern' among members of trial bar: Counsel speaking with witness at recess

By The Madison County Record | Jan 27, 2015

MOUNT VERNON – Presiding Justice Judy Cates of the Fifth District appellate court warns lawyers not to coach clients or experts in brief breaks at depositions.

In a Jan. 16 opinion, she addressed a “frequent concern amongst members of the trial bar” over counsel speaking with a witness in the course of a short recess.

“When the deposition resumes, the opposing lawyer is quite sure that there has been coaching of the witness during the break," she wrote.

"When the witness is asked whether he spoke with his counsel, he responds in the affirmative.

“When asked, however, about the details of that conversation, an objection is interposed, claiming that any question about the details of that conversation is protected by the attorney client privilege.

“A primary purpose for pretrial discovery, including the taking of depositions, is to elicit the facts in a case and to commit witnesses, under oath, to their memory of the evidence prior to trial.

“Once a witness, especially a client, has been prepared for a deposition by his attorney, the witness should be on his own, and the coaching of that witness via private conferences is not proper during the course of the witness’s testimony.

“One can only imagine the scenario where the trial judge announces to the jury that the attorney needs a break in order to clarify the witness’s testimony.

“Such a circumstance breaches the integrity of the judicial system.

“More prudent is the admonition made at trial that the attorneys not speak to the witness during the break.

“Because deposition testimony is tantamount to testimony given during a trial, it is equally important that the witness and his lawyer not engage in improper conferences during a deposition.

“Should that occur, the content of those conversations should not automatically and unconditionally be covered by the attorney client privilege, and the content should be subject to some inquiry by the judge in camera or the deposing attorney to determine whether there has been inappropriate coaching.”

Cates filed the opinion in concurring with a ruling that professor Dan Jones of Southern Illinois University in Carbondale didn’t cheat on mileage reimbursement.

The accusation came not from SIU but from professors Jerry Becker and Kevin Wise, who sued Jones on behalf of the university in St. Clair County court.

The plaintiffs complained because Jones kept an office in his Belleville home and received reimbursement for driving to schools where he observed student teachers.

They argued that what he called an office wasn’t one, because it wasn’t accessible to wheelchairs and the door didn’t lock.

The university didn’t bless them for seeking to recover the money. In fact, the university assigned staff lawyer Reona Daly to represent Jones.

Becker and Wise deposed Jones, then moved for a second deposition to disclose contents of his conversations with Daly during a break.

Associate judge Richard Aguirre denied the motion.

He granted summary judgment to the university, finding Jones established a home office at the direction of SIU administrators.

On appeal, Justices Thomas Welch, Richard Goldenhersh and Cates affirmed Aguirre in granting summary judgment.

Welch and Goldenhersh found that the content of any conversation between Jones and Daly wouldn’t affect the outcome of the case.

Cates stepped away from their position, writing that she did not accept or approve what occurred during the deposition.

Tara Dahl of Carbondale represented Becker and Wise.

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