The Supreme Court appeared skeptical on Monday of arguments seeking to strike down the limitations a judge can place on what a lawyer can discuss with his client during an overnight recess while the client is in the middle of testifying.

The first case of the high court’s new term, Villarreal v. Texas, looks at whether David Villarreal’s Sixth Amendment right to a lawyer was violated by a judge’s order during his trial on murder charges not to discuss his testimony during an overnight recess while he was in the midst of providing testimony. Texas argues the trial judge’s rule fits with the high court’s precedents limiting attorney-client discussions of testimony during trial recesses, something lower courts in Texas have upheld leading up to the arguments before the justices.

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Justice Clarence Thomas opened questioning of Villarreal’s attorney, Stuart Banner, by asking why there was a distinction between limits on “coaching,” or attempting to alter a witness’s testimony on the stand, in the courtroom versus during an overnight recess.

“Why is this standard different between what a lawyer can coach or manage with respect to testimony while he’s on the stand, which is basically a concern, and what he can coach or manage during the recess?” Thomas asked Banner.

Banner argued there is a “distinction between impermissible coaching and legitimate, necessary counseling.” He also pointed to the high court’s 1989 ruling in Perry v. Leeke, which found a court could restrict discussions between a lawyer and his client who is on the witness stand during a short daytime recess, while arguing that the court has in the past seen differences between overnight and brief daytime breaks.

Justice Elena Kagan later grilled Banner on the Perry ruling, pointing out how that ruling conceded that topics and discussions would differ between a 15-minute daytime recess and an overnight recess.

“It draws a pretty sharp line between matters going to trial strategy and matters going to trial testimony of the defendant itself, and says that that’s the reason why the recess — the overnight recess versus 15-minute recess — makes a difference,” Kagan said. Banner said he disagreed with her interpretation of the ruling.

Justice Neil Gorsuch also grilled Banner on the source of the right for a person to discuss testimony with his or her lawyer while still on the stand during an overnight recess.

“I’m having a hard time understanding, historically, traditionally, what have you got that says that there’s a right of a witness to be coached or, if you don’t like that word, managed by his attorney while he’s not on the stand?” Gorsuch asked.

Banner argued there is “no historical warrant” for a trial court being able to limit topics that a client and lawyer may discuss.

Texas argued before the high court that the trial court’s limits were lawful, leaving open exceptions for issues loosely related to testimony, such as calling more witnesses, plea bargains, and concerns about perjury. The Justice Department argued for a wider ruling that would prevent lawyers, during an overnight recess, from discussing the client’s testimony at all, including “incidental discussion.”

The lawyer representing Texas, Andrew Warthen, was asked some hypothetical questions by the justices about what kinds of discussion would be permissible under their rule. One of the questions raised by Kagan centered on whether a lawyer would be able to tell his client to “stop mumbling” and make eye contact with the jury in his testimony, to which Warthen said that would be considered “coaching,” which would be barred by the trial court order.

The justices appeared more open to Texas’s preferred ruling, allowing incidental discussion of a witness’s testimony, than the Justice Department’s wider, preferred ruling.

SUPREME COURT TO OPEN TERM HEARING CASE OVER WHAT LAWYERS MAY DISCUSS WITH TESTIFYING CLIENTS

The Supreme Court is expected to release a ruling in the case in the coming months.

The high court’s opening week of the term continues Tuesday with arguments in Chiles v. Salazar, a high-profile case regarding the free speech rights of counselors and Colorado’s law seeking to ban “conversion therapy” broadly.