When Are My Conversations with My Lawyer Not Protected Under the Attorney-Client Privilege?

It may come as a surprise to many, but conversations that you have with your lawyer may not always be protected under the attorney-client privilege. When can this come up in your personal injury case? Two times. The first time is when you are giving your deposition. The second time is at the time of trial. Both times happen when you are providing testimony to the other side concerning your case. We are all familiar with a person getting on the witness stand at the time of trial. However, you may not be familiar with the deposition process.


A deposition is simply a question and answer session concerning your case. The testimony you give during a deposition is similar to what you would do at the time of trial, in that you swear an oath to tell the truth. However, what you say at your deposition can be used against you at trial. 

A deposition generally takes place in a more relaxed setting than a courtroom. A deposition is usually scheduled in the conference room of the opposing party’s attorney’s office. During a deposition, a court reporter types all of the questions being asked and your responses to those questions. A booklet is then made of the question and answer session, and it reads much like a play. 

Depending on the complexity of your case, depositions can be completed in about an hour, or they can last all day. Any skilled personal injury attorney will meet with you ahead of time, to go over the deposition process with you.
 
It is key that preparation for your deposition or trial testimony, be done ahead of time. The courts have determined that they don’t want any “coaching of the witness” at the time of the witness is giving testimony. See Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594 (1989); see also Coyote Springs Investment v. Eighth Judicial District Court, 131 Nev. Avd. Op. 18 (2015).  The courts have also held that a party has no constitutional right to consult with their lawyer while testifying.
 
What does this mean? You cannot ask for a break to speak with your lawyer during a deposition or at trial. However, if the requested break was done to determine whether to assert a privilege, then your attorney must put certain facts on the record, to keep that conference private. 

However, if a break is not requested by you or your lawyer, then you can speak freely with each other. This can happen in one of two ways. First, the other side may request a break. If this happens, then your conversations with your lawyer are safe. Secondly, your attorney can request, pre-arranged breaks, in writing to the other side. If the breaks during your testimony are pre-arranged and agreed upon, then the shield of the attorney-client privilege should be held up by the courts. Your personal injury attorney will make sure to go over this with you prior to you giving testimony in your case. 

Next time, we will revisit how social media posts can sidetrack your personal injury case.