Legal Definitions - opinion work product

In legal proceedings, attorneys and their teams prepare various documents and materials in anticipation of litigation. These materials are generally protected from being easily discovered by the opposing side under what is known as "work product" doctrine. Opinion work product is a particularly strong form of this protection.

Opinion work product refers to any materials that reveal an attorney's mental impressions, conclusions, opinions, or legal theories concerning a client's case. This includes their strategic thinking, assessment of facts, evaluation of legal arguments, and overall approach to the litigation. Because it delves into the attorney's thought process and strategy, it receives a much higher level of protection from discovery than ordinary work product. It is rarely discoverable, even if the opposing party can show a substantial need for it, as courts are hesitant to allow one side to gain insight into the other's core legal strategy.

• Example 1: Internal Case Assessment Memorandum

  A corporate lawyer is defending a company against a breach of contract claim. Before filing any motions, the lawyer drafts an internal memorandum for their legal team. This memo analyzes the plaintiff's potential arguments, assesses the credibility of key witnesses based on preliminary interviews, outlines potential legal defenses, and discusses the likelihood of success at trial, including a candid evaluation of the case's weaknesses and strategic recommendations.

  Explanation: This memo is a prime example of opinion work product. It doesn't just list facts; it contains the attorney's strategic thinking, their assessment of evidence, their legal theories, and their candid opinions on the case's strengths and weaknesses. Revealing this memo would give the opposing side a direct look into the defense team's strategy and internal evaluations, which is precisely what opinion work product protection aims to prevent.

• Example 2: Attorney's Handwritten Interview Notes with Commentary

  During the preparation for a personal injury lawsuit, a plaintiff's attorney interviews a potential expert witness. While taking notes, the attorney not only records the witness's statements but also jots down their personal observations and impressions, such as "Witness seemed hesitant on point X – might be vulnerable on cross-examination," or "Expert's explanation of causation was very strong and persuasive; use this phrasing in opening statement."

  Explanation: The attorney's handwritten notes, particularly the parts reflecting their personal observations, assessments of credibility, and strategic thoughts about the witness's testimony, constitute opinion work product. These are not merely factual records; they reveal the attorney's mental impressions and evaluation of the evidence and potential trial strategy. Allowing the opposing counsel access to these notes would expose the attorney's internal assessment of the witness's strengths and weaknesses, giving them an unfair advantage.

• Example 3: Draft Settlement Proposal with Internal Strategic Annotations

  A lawyer representing a client in a complex business dispute drafts a proposed settlement offer. Before sending it to the opposing party, the lawyer adds internal comments and annotations to the draft, outlining the strategic rationale behind each term, identifying fallback positions, and speculating on the opposing party's likely reactions and counter-offers. These comments are for internal team discussion only and are not intended for the opposing party.

  Explanation: The internal comments and annotations on the draft settlement proposal are opinion work product. They reveal the attorney's negotiation strategy, their assessment of the opposing party's likely moves, and their overall legal and tactical thinking regarding the settlement. This goes beyond mere factual information about the settlement terms; it exposes the attorney's mental impressions and strategic planning, making it highly protected from discovery.