A slippery slope for attorney work product
By Richard Gabriel
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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.
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