I’m watching reruns of The Practice. During legal arguments the lawyers keep throwing in the words “work product.” What does this mean? What is the significance?
“Work product” describes things that a lawyer prepares in anticipation of litigation (either imminent or well down the line) that he is allowed to keep secret. In the U.S., a party in litigation is required to turn over any relevant documents he has about a case, even if they’re damaging. The Work Product Doctrine exempts material prepared by lawyers so that when a lawyer spends time and money researching the issues on a case and flagging important (read: damaging) documents, that work doesn’t get delivered to the other side, allowing them to piggyback on the sweat expended by their opponent.
–Cliffy
What Cliffy said.
It usually includes the attorney’s research, notes, file memos, phone messages… basically any work the attorney does on a file.
As mentioned, if I did a bunch of legal research on an issue for a client, the opposing attorney may have a right to see all of my client’s documents, but does not have the right to see the product of my personal thoughts and labor (“work product”) on a case.
I think that definition is a little misleading. You make it sound like the act of an attorney putting a flag on a document can automatically exclude that document from production. Of course, this is not the case. Just because a lawyer has flagged a document as “damaging” does not exclude the document from production. The document itself still has to be turned over. However, the fact that the attorney red flagged it, or otherwise marked or grouped it as “important” is absolutely protected under the WP doctrine.
I don’t think my definition was all that confusing, but yes, your amplification is correct.
–Cliffy
What Cliffy said is exactly correct, but I think it needs to be emphasized that the work product doctrine is designed to protect the client’s interest, not the lawyer’s interest in his own work. This is not a “sweat of the brow”-type protection. The reasoning is that in order to get effective representation, a client must be assured that anything he tells his lawyer, or any advice the lawyer gives him is going to stay secret.
The leading case is the US Supreme Court’s 1947 case Hickman v. Taylor. Work product also includes an attorney’s mental impressions, and the issue in the Hickman case involved an attorney, Fortenbaugh, who went out and interviewed witnesses to an accident, and made notes about those interviews. The other side tried to get those notes. Fortenbaugh resisted, claiming attorney-client privilege protected the notes. But the court said, no, it doesn’t, because attorney-client privilege protects communications between an attorney and his client; these are just witness statements.
But the court noted that permitting the opposition to get Fortenbaugh’s notes sets up a really bad situation: the opposition – which knows who the witnesses are and could go interview them any time – can just sit back and reap the benefit of Fortenbaugh’s work. Fortenbaugh would then be torn between working for his client, yet knowing that all his work would benefit his client’s opponent. Never fear, said the court:
Hence, work product of the lawyer is generally protected from production.
Not having seen the episodes of The Practice at issue, I can only guess that the information that was sought was work the lawyer had done, including interviews or strategizing about who the appropriate witnesses were, etc. Does that sound about like what they were talking about?
They’ve used the term in a lot of episodes. But the episode I saw today was an appeal against a murder conviction. The lawyers obtained a preliminary forensics report that had not been disclosed in the original trial. The prosecutors tried to argue “work product” unsuccesfully: case dismissed.
The work product doctrine also protects work that the lawyer does through certain other people, like experts. For example (and this may come as a shock to any readers familiar with my previous threads on such things as “Did you know if you stuck a pencil in a power cord you can start a fire?” or “Why am I cold?”), I am not a scientist. So when I’m working on a case involving, for example, aerodynamics, I can hire an expert in aerodynamics to assist me in figuring out the case. I can supply my expert with documents, and talk to her about my theories of the case to see if they’ll, uh, fly. 
Under certain circumstances (like if the expert is only a “consulting expert” and not a “testifying expert”), my discussions with the expert, and the expert’s conclusions, are work product. In essence, the expert is a tool I am using to do my lawyer work, much as I would use a dictionary or a computer.
So my WAG is that the defense lawyers got their hands on a copy of a preliminary forensics report that exculpated the defendant (by exculpated, I mean either showed he was not guilty, or put his guilt into doubt, or showed someone else was guilty of the crime). The defense lawyers objected, because the prosecution is required to disclose all exculpatory evidence (or all evidence that tends to exculpate). The prosecution, relying on the work product doctrine, likely was trying to claim that because the report was preliminary, it showed the work they had done with their expert and so should not be disclosed. This last is a weak argument, so I’m hoping they had a better rationale than that. That’s my take on what you’ve posted above. Hope that helps.
Okay, to answer your questions, within the plot of the episode the preliminary forensics report supported the killers plea of self defence. A later, more detailed report conducted by someone else opposed it. This was presented at the original trial, and the original report not disclosed. Work product was about the only rationale they presented, and the judge was not at all impressed.
Ao, thanks for the help everyone. Next time they use the phrase I’ll have a better idea what they’re talking about.