Let’s Stop Saying “Attorney Work Product Rule,” Okay?

I have noticed several references in recent literature, memoranda, and legal journals to the “attorney work product rule.” It is beyond me why so many otherwise bright and knowledgeable people continue to refer to the Work Product Doctrine in this fashion. The Doctrine is, of course, not limited to attorneys, and in fact, really has nothing to do with attorneys specifically except that attorneys are one of the many representatives of a party whose work product and thoughts about litigation are protected.  Obviously, attorneys are the most common representatives to provide or prepare documents and tangible things that are prepared in anticipation of litigation or for trial, but the rule expressly applies to a party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). It further provides absolute protection against discovery of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

A surprising number of attorneys apparently incorrectly believe that the Doctrine does not apply unless, like the attorney-client privilege, a lawyer is somehow involved in the preparation of the materials in question.  Nothing could be further from the truth, and as a result, the Work Product Doctrine is much broader than the attorney-client privilege, and generally, much easier to sustain in discovery disputes.  As defense lawyers, we certainly do not want to do anything to incorrectly limit the scope and effect of the Work Product Doctrine, and all of us need to strive to broadly interpret the protection rather than narrowing it. Since defendants generally use lawyers and other representatives to analyze potential or threatened litigation, and plaintiffs less so (except in business and commercial litigation between corporate entities) the plaintiff’s bar generally attacks and tries to limit the Work Product Doctrine just as it has attacked the attorney-client privilege down through the years. These attacks need to be fiercely resisted and our courts encouraged to apply the Work Product Doctrine broadly to protect the doctrine to prevent what the U.S. Supreme Court correctly noted in Hickman v. Taylor as practicing law “on the wits of your adversary.”  Parties have no right to, and should not even request, disclosure of what the other side thinks about the lawsuit or the merits of the case regardless of which representative of the party expressed those views.

The Perils of Trial Publicity And Media Coverage of Trials

Years ago, I wanted to be a journalist. Accordingly, I spent five years working at the Charleston News and Courier in a variety of roles, none of which was very close to being a real news reporter.  I worked in the proof room and the composing room, and I served as a menial “cub reporter” until I ultimately abandoned my ambitions to be one of the great newsmen of all time and decided upon law school. Journalism still fascinates me, however, and I confess I cannot start the day without reading the newspaper (an actual paper copy of the newspaper delivered to my doorstep each and every morning).  Becoming a guest blogger on our firm’s products liability blog may be the closest I come to being a journalist.

Despite my love of journalism, there is nothing more irritating than the coverage provided by the news media of cases that are being litigated.  First, they invariably give great publicity to the allegations of the complaint, most of which are false and cannot and will not be proved by the Plaintiff.  Since we are supposed to be restricted in commenting on matters which are before the courts, as lawyers, the defendant is relegated to a brief statement something along the lines of “We deny the allegations of the complaint and look forward to proving our defense in court.”  Of course, there are lots of lawyers who have not read or do not understand the ethical rules and believe they can pontificate about their case in great detail to the media, and despite efforts I have made over the years to limit those statements, the courts do not seem to be very troubled by what I think is an egregious violation of the ethical rules.  See, for example, Rule 3.6(a) of Rule 407 of the South Carolina Appellate Court Rules.

So, what to do?  Under the rules, attorneys in South Carolina are allowed to repeat to the media what is a matter of public record, e.g., the pleadings.  Thus, one solution is to include in your answer to the allegations of the complaint a “sound bite” you can use with the media to explain why the claim is unfounded and the defendant has no liability in the case.  There is nothing much worse than saying “no comment”, which the media always uses immediately following the plaintiff’s most explosive statement about the case, which makes it look as if the defendant is guilty as hell.  Thus, I always try to have something I can legitimately say about how bogus the plaintiff’s claim is other than “We deny the allegations of the complaint and will look forward to vigorously defending the case in court.”  Although caution is advised, we must always be alert and responsive in a manner which can legitimately be reported by the media concerning the strengths of our case and the weaknesses of the plaintiff’s.

Of course, notwithstanding our best efforts, after a successful outcome, by way of a very favorable settlement or a verdict in favor of the defendant, if the news publishes anything at all – which it frequently does not – the media will only make a passing reference to the jury verdict or the fact that the case has been resolved. Of course, it will then invariably regurgitate the very same allegations of the complaint which the defendant just eviscerated and completely disproved.  Nowhere does the media publish that the plaintiff offered false or unproven allegations and/or that the defendant did nothing wrong and was entirely in the right.

Sorry, rant over.