A slippery slope for attorney work product

By Richard Gabriel

Gabriel

Imagine that you are in your conference room, preparing a client for an upcoming trial, when your paralegal comes in to give you a message. Off the cuff, you ask him or her what a jury might think about the client's appearance, as a witness. The next thing you know, your paralegal is being served with a subpoena to testify about the nature of that conversation.

Or maybe you are meeting with an expert witness and a graphic consultant to prepare exhibits. You happen to exchange a few comments about the expert's testimony in the upcoming trial. Within days, your graphic consultant is subpoenaed for deposition about the nature of that conversation.

Sound far-fetched? Not as far as a couple of recent filings in lawsuits are concerned. More and more, attorney work product and attorney-client privileges are coming under attack. Instead of challenging the confidentiality afforded an attorney with a paralegal or graphics consultant, however, these filings presume that, somehow, the attorney work product is discoverable when it includes the use of a trial consultant in witness preparation. These lawsuits beg the fundamental question: How much of an attorney's thought process should be discoverable?

This was precisely the issue that the Third U.S. Circuit Court of Appeals considered when it ruled recently that the attorney work product privilege protects the efforts of trial consultants from the discovery process. The case of In re Cendant Corporation Securities Litigation, No. 02-4386, involving trial consultant and now ubiquitous media celebrity "Dr. Phil" McGraw, intensifies the spotlight on the expanding role of trial consultants in American jurisprudence.

The Appeals Court in the Cendant case reversed a ruling by U.S. District Court Judge William Walls that the attorney work product privilege does not cover pre-deposition preparation of a witness by a non-testifying trial consultant. Earlier, Judge Walls' ruling had reversed a special discovery master's findings that the work product and attorney-client privileges protected Dr. McGraw's preparation of an Ernst & Young witness who had drawn up financial statements in litigation with Cendant.

While the Third Circuit's ruling may garner a collective shrug in upholding these core privileges, it highlights three important issues involving the work of trial consultants. First, the ruling demonstrates how highly the court values the advocacy process and the protections afforded counsel as they prepare and present a case. Since the trial consultant's work involves testing, clarifying and helping shape the presentation of the attorney's theories, evidence and case strategies, the work product privilege applies to our work — with a witness, a graphic artist or another member of the trial team. This ruling naturally extends the confidentiality of oral, written and electronic communication among attorneys, their employees and their clients to the attorney's interaction with the trial consultants who help prepare their cases.

Second, although the opinion addresses the witness preparation conducted by Dr. McGraw, it can be interpreted as applying to all or most of the services that trial consultants provide, including strategy sessions, client discussions, jury research, demonstrative evidence development and jury selection. And while there may be attempts to interpret the law to exclude protection of our services, as long as the work is directed by counsel and pertains to counsel's thoughts, opinions and impressions, the work product protection applies.

Third, the ruling lays aside archaic misperceptions of the trial consultant as a kind of "charm school coach." The Third Court acknowledges that the trial consultant is not there merely to make witnesses look good, to give sound bites or to conduct seminars on general principles. Since much litigation involves complex, scientific, academic or legal information that can confuse a jury, the role of the trial consultant is to clarify and assimilate — to help the attorney untangle the enigmatic web of facts, to understand and communicate them clearly and accurately.

The assaults on attorneys' rights that are being mounted with relentless regularity in legislatures and courtrooms nationwide give serious cause for alarm. Had the Third Court ruled that the trial consultant's work was not protected by privilege, would it have been too long a stretch to say that discussions with your law partner or paralegal or spouse are subject to discovery? Once you allow even a small opening in this crucial protection, where would the assault on privilege end?

At the heart of legal advocacy are the thoughts, impressions and opinions of the attorney. In the coming months, members of the American Society of Trial Consultants will talk with the numerous state and national legal associations about ways to protect this most essential privilege. All of us must be vigilant, get involved and work together tenaciously to preserve our professional rights and protect our abilities to provide the most effective assistance for our clients. 

The Third Court's full opinion can be downloaded from the American Society of Trial Consultants' web site at www.astcweb.org.

• Richard Gabriel is President of the American Society of Trial Consult-ants (ASTC), a professional association established in 1982 to advance the discipline and practice of trial consulting. Gabriel has been involved in thousands of civil and criminal trials and is an author with Thompson-West Publications.