All In The Family: I Need A Moment… Limits to constitutional right to counsel
Published in Chicago Lawyer Magazine, May 2023
By Daniel Stefani
In Illinois, all dissolution of marriage trials are bench trials by statute. Given the volume of cases in the domestic relation divisions, especially in Cook and its collar counties, and the nature of the practice, there is a heavy amount of motion practice during the life of a case in advance of any ultimate trial on merits.
As a result, there are few trials heard on a continuous basis from start to finish. Consequently, there are many times when a party will testify over a course of weeks or months on intermittent dates. This leaves many days where the party is still technically “on the stand” until the ultimate completion of its direct examination, cross and/or redirect.
This leads to the question of whether the testifying party should be allowed to discuss testimony with counsel during recesses. It’s compounded by the question of whether the parties should be allowed to discuss previous testimony, future testimony, or both.
The right to counsel in criminal cases is established in the Sixth Amendment. The right to counsel in civil cases is rooted in the Fifth Amendment. The distinction has evolved because a criminal litigant faces a potential loss of liberty versus damages in a civil case.
In a 2nd District Illinois Appellate Court case, In re the Marriage of Keegan v. Papin, 2022 IL App (2d) 190495, the unanimous panel analyzed the scope of a divorce litigant’s “right” to counsel and concluded a civil litigant has a Fifth Amendment due process right to obtain counsel of choice, but that right does not extend to a litigant’s ability to consult with counsel while testifying during recess.
In Keegan, on the first day of trial, the wife started testifying but did not finish. The court warned her that because she was “still on the stand,” she should not discuss her testimony with anyone, including her attorneys. She acknowledged her understanding and agreed.
At the end of the next day, the husband had not completed his testimony. The court gave the husband the same warning. The next day, the wife was again on the stand and did not finish her testimony. This continued for nearly four months. The court gave the wife the same admonishment and further clarified she could not discuss both her past and future testimony with counsel. On the next court date, the trial was continued almost five months with the same admonishment.
On appeal, the wife argued the court’s prohibition during these periods of recess effectively deprived her of the benefit of legal representation which she argued was a protected due process right.
The 2nd District panel cited several federal cases from various circuit courts, including a 5th Circuit ruling cited by the wife that held “prohibiting a civil litigant from consulting with his attorney during breaks in his testimony infringes on his constitutional right to retain hired counsel.” The 2nd District distinguished that case by citing other federal cases as well as a United States Supreme Court ruling that held even a criminal defendant has no constitutional right to counsel while testifying during recess.
The 2nd District also cited other persuasive authority which clarified the trial court has “brought discretion” to manage the progress of the testimony it hears and those powers extended to the trial court’s admonishment in Keegan. Finally, the court noted both parties were given the same admonishment, so it was not unfair to the wife.
A few takeaways here. Given this opinion, and if faced with similar admonishments, practitioners should prepare witnesses well in advance of starting testimony. Additionally, practitioners should prepare for issues on both direct examination and anticipate cross examination questions and discuss them with their clients. Practitioners should also make sure the party witness is fully conversant with exhibits and practice any portion of the direct exam regarding the exhibits, identifying them, and explaining the proper foundation and purpose of that aspect of testimony. Additionally, a party could be prohibited from speaking to counsel after cross and before their redirect examination. Witnesses should be prepared in advance about the procedure of testifying and the purpose of redirect examination.
It’s clear from Keegan that divorce litigants are not prevented from total access to counsel during recess to discuss matters other than their prior or future trial testimony.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.