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American Bar Association

Practice Pointers

How do I meet my requirement to meet-and-confer under Federal Rule 37?

Satisfying the "Meet and Confer" Requirement in Federal Court

Avoiding the Pitfalls of Alternative Billing Arrangements

Tips for Winning at Oral Argument

What Should I Expect From My First Jury Trial?

To swear or declare . . . when do I use an affidavit versus a declaration?

When to Swear and When to Declare: Affidavit or Declaration?

What are the top 10 tips "from the bench" on practice in a trial court?

Ten Tips from the Bench: Motion Practice Oral Argument

How do you go about subpoenaing an out-of-state witness for deposition in a state-court case?

Can I Get a Witness: Obtaining Out-of-State Deposition Subpoenas

During a break in my client's deposition, he and I discussed his testimony. The deposition resumed, and opposing counsel asked what was discussed. What was opposing counsel entitled to learn, if anything?

It varies. Some states (TX, FL, NJ) prohibit conferences outright once a witness has been sworn except to determine privilege. The leading case on this issue is Hall v. Clifton Precision, 150 FRD 25 (ED Pa. 1993), which found exploration of these conferences to be fair game except where there was a determination of privilege being performed. This case was followed in a Massachusetts, in Holland v. Fisher, 3 Mass L Rptr 167 (Mass. Super. 1994). Chances are if a conference is done with a question pending it can be explored, and there is more leeway if it is undertaken during a break or overnight, but if you Shepardize Hall in your jurisdiction you will likely find some more guidance. Raymond Ausrotas, Arrowood Peters LLP, Boston MA