• May 3, 2012
In Litigation, Stories Are Retold.  How Visible Do We Want the Storytellers to be?

"Pay No Attention to the Man Behind The Curtain!"

Civil litigation, when you think about it, is, in a sense, the re-telling of stories.  Whether it is a car accident, a patented invention, a business transaction gone bad, or what have you, the job of trial lawyers, you might say, is to make sense of the events, to explain to a judge or jury what actually happened.

So, to what extent do we care about the evolving thought processes, scribbled notes, or drafts of trial counsel? They’re not normally at the accident scene or “at the scene of the crime at the time of the crime,” you might say (with a few very rare interesting exceptions).

Maybe trial lawyers should be the unseen medium through whom the story is told, and should not become the story itself?  Do we really care about the story-tellers, and their private thoughts and perspectives?  In fact, it seems we do care and care quite a lot.

In the Buca v. Faegre & Benson (n/k/a Faegre Baker Daniels) legal malpractice litigation, plaintiff Buca’s claim is that the Faegre lawyers fouled up the sale of Buca-owned restaurants and allegedly accidentally forgot to get Buca, the seller, off of the leases for restaurants sold (previously covered on Minnesota Litigator here).

There are Buca lawyers’ notes about witness meetings and draft affidavits of non-parties in the context of the malpractice lawsuit that counsel for Faegre’s trial lawyers now seek access to.  Buca’s lawyers, Bill Skolnick and Rusty Cargill, of Skolnick & Shiff, P.A., on the other hand, seek to shield these materials as core attorney work product, immune from discovery.

To hear counsel for the Faegre firm tell it, (Bob Weinstine, Brooks Poley, and Brent Lorentz from Winthrop & Weinstine) the lawyers’ papers are critical in determining just what happened in the problematic underlying restaurant sale transaction.

It has always struck this author as puzzling, though, that notes and drafts are deemed particularly important when set against the final versions — that is, witnesses’ sworn testimony (whether in the form of written affidavits or live testimony).  This view if an important distinction is supported by recent changes to Federal discovery rules with regard to drafts of expert reports and trial lawyer chatter with experts.  These are now expressly protected trial protection materials (Fed. R. Civ. P. 26(b)(4)(B) & (C)).  What matters are the ideas expressed in experts’ final reports, not what ends up on the cutting room floor.  The completed opinion is the final crystallization of the expert’s opinions and analysis.

On the other hand, certainly if one had exhaustive notes reflecting a witness saying, “The light was red,” this might cause one to question same witnesses sworn testimony that the light was green.  On the other hand, even then, one is sworn testimony and the other is hearsay (in the common non-legal sense, at least).

There are clearly good arguments on both sides but the risk of the underlying facts being overshadowed and obscured, rather than elucidated, by later litigation-related “evidence” is real.

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