• October 28, 2011

In January, 2008, the Walter J. McCarthy, a barge, sunk at a dock in Duluth.  Now, coming up on the fourth anniversary of the accident, lawyers are still hotly litigating financial responsibility for the disaster (covered previously here).

In many if not most large industrial accidents in our society in this day and age, among the initial “first responders” will be a lawyer, or two, or scores for large accidents.  The question is likely to arise about what part of the lawyers’ work, if any, is accessible to adversaries in later litigation.  

What is more important?  Allowing litigants to have confidential communications with counsel in the immediate aftermath of a disaster or allowing later litigants to have access to all facts, however collected and by whomever collected, after an accident?

Can these two interests be balanced?  Theoretically, yes.  Practically speaking, it is not always so easy.

As an aside, those interested in the real day-to-day lives of civil litigators would benefit from reading the affidavit of Duluth attorney John D. Kelly in this battle for access to accident information apparently collected by attorney Emery.

As can be seen in reading the twelve page affidavit, we spend much of our lives on the telephone, emailing, writing letters, and then reciting for courts all of our emailing, telephoning, and letter-writing.  It can be dramatic, glamorous, ennobling and gratifying (but very often not).

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