EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, November 21, 2020

United States District Court for the District of Arizona Finds Attorney Can't be Sequestered Despite Being a Potential Witness

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So, imagine that a defense attorney might be a witness at trial. Could the plaintiff's counsel have defense counsel excluded from the courtroom during the testimony of other witnesses?

The question sounds ridiculous, but it was recently addressed by the United States District Court for the District of Arizona in Cramton v. Grabbagreen Franchising LLC, et al., 2020 WL 6680366 (D. Ariz. 2020). And the court initially noted that

At first blush, Rule 615 would seem to require Counsel's exclusion from the courtroom during the testimony of other witnesses. This would obviously interfere with her ability to serve as trial counsel.

The court then, however, observed that

In Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912 (9th Cir. 2005), the Ninth Circuit confronted an analogous situation. There, after the plaintiff (Milicevic) bought a Mercedes S-500 for nearly $100,000, the car began experiencing mechanical problems....In response, Milicevic arranged for her attorney (Gellner) to write a letter and make phone calls to the manufacturer and dealer....Milicevic, represented by Gellner, then brought a “lemon law” lawsuit against the manufacturer and dealer....The defendants, in turn, identified Gellner as a trial witness (due to his role in writing the letter and making the phone calls) and argued he should be “exclude[d]...from the courtroom while other witnesses were testifying” under Rule 615....The district court denied the exclusion request and the Ninth Circuit affirmed, holding that Gellner's presence in the courtroom was permissible under Rule 615(c) because, inter alia, “Gellner had represented Milicevic from the beginning of the claim process, and Milicevic had special reasons for insisting he continue as one of her attorneys.”

The court in Crampton then adopted this analysis and found that defense counsel could not be excluded from the courtroom because sh was essential to presenting the defendant's defense under Rule 615(c).



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