Legal Definitions - attorney's work product

The term attorney's work product refers to materials an attorney or their agents create in anticipation of litigation or for providing legal advice to a client. This includes a wide range of items such as notes, research, strategies, mental impressions, and other documents developed as part of preparing a legal case or representation.

The crucial aspect of work product is that it is generally protected from being disclosed to the opposing side in a lawsuit. This protection allows lawyers to thoroughly investigate, analyze, and strategize on behalf of their clients without fear that their preparatory efforts will be revealed, which could undermine their client's case.

Here are some examples illustrating attorney's work product:

• Internal Strategy Memo: Imagine a company facing a lawsuit for breach of contract. Their attorney drafts an internal memorandum for the legal team outlining potential arguments, identifying weaknesses in their client's position, and detailing a strategy for cross-examining a key witness from the opposing side. This memo contains the attorney's mental impressions and strategic thinking specifically for the case.

  This memo is considered attorney's work product because it was created in anticipation of litigation and reflects the attorney's legal strategy and analysis. The opposing party cannot compel the disclosure of this document during the discovery phase of the lawsuit.

• Witness Interview Notes: In a complex environmental dispute, an attorney interviews several employees of their client company to gather facts about past operational practices. During these interviews, the attorney takes detailed notes, including their own observations about the credibility of each witness and preliminary assessments of how their testimony might impact the case.

  These interview notes, particularly those containing the attorney's analysis and impressions, are created in anticipation of litigation and are protected as work product. While the factual information gathered from the employees might be discoverable through other means (like depositions), the attorney's personal notes, thoughts, and evaluations are generally shielded from the opposing side.

• Drafting Expert Witness Questions: For a product liability case involving a defective medical device, the plaintiff's attorney consults with a medical expert. The attorney drafts a series of specific, detailed questions for the expert to consider, along with an outline of the key points the attorney wants the expert to address in their report and potential testimony, reflecting the attorney's theory of the case.

  The attorney's draft questions and outline for the expert are considered work product because they reveal the attorney's strategic approach, mental impressions, and anticipation of how to present evidence at trial. These preparatory materials are protected from disclosure to the defense, allowing the attorney to develop their case strategy freely.