Legal Definitions - attorney work product

Attorney work product refers to documents and other tangible items that are created by or for a party or their representative (most commonly an attorney) specifically because they anticipate a lawsuit or legal dispute.

The primary purpose of protecting attorney work product is to allow lawyers to thoroughly investigate a case, strategize, and prepare for litigation without fear that their efforts will be immediately discoverable by the opposing side. This protection encourages robust legal preparation. There are two main types of attorney work product:

• Opinion Work Product: This category includes an attorney's personal thoughts, evaluations, conclusions, opinions, and legal theories about a case. It reflects the attorney's mental processes and strategic thinking. Opinion work product receives the highest level of protection and is rarely, if ever, subject to disclosure to the opposing party.
• Ordinary Work Product: This refers to factual information, documents, or other tangible items that do not reveal the attorney's mental impressions or legal strategies. While still protected, ordinary work product may be discoverable under certain circumstances if the opposing party can demonstrate a substantial need for the materials and an inability to obtain the equivalent information without undue hardship.

While attorney work product is generally protected, this protection can sometimes be overcome or waived depending on specific legal circumstances.

Here are some examples to illustrate attorney work product:

• Imagine a company facing a potential lawsuit from a former employee alleging discrimination. The company's in-house legal counsel drafts an internal memorandum for the CEO, analyzing the employee's claims, assessing the company's legal vulnerabilities, and outlining potential defense strategies. This memorandum, containing the attorney's assessment and strategic advice, would be considered opinion work product because it directly reflects the attorney's mental impressions and legal theories developed in anticipation of litigation.

• A law firm is preparing to represent a client in a complex contract dispute. A paralegal, under the attorney's direction, compiles a binder of all relevant emails, correspondence, and drafts of the contract exchanged between the parties over several months. This compilation, specifically organized and prepared for the upcoming litigation, would be considered ordinary work product. While the individual emails themselves might not be protected, the specific selection, organization, and indexing of these documents by the legal team in anticipation of the lawsuit makes the compilation itself work product.

• Consider a personal injury case where an attorney hires a forensic accident reconstruction expert to investigate a car crash. The expert conducts an analysis, takes measurements, and creates a detailed report outlining the sequence of events and factors contributing to the accident. This expert report, commissioned by the attorney specifically to prepare for potential litigation, would typically fall under ordinary work product. It contains factual findings and technical analysis, not the attorney's personal legal opinions, but it was prepared at the attorney's direction in anticipation of a lawsuit.