We think you have liked this presentation. If you wish to download it, please recommend it to your friends in any social system. Share buttons are a little bit lower. Thank you!
Presentation is loading. Please wait.
Published byReanna Bardell
Modified about 1 year ago
© The McCoy Law Firm 2012 James McCoy The McCoy Law Firm Coit Rd., Ste. 560 Dallas, Texas (214)
Competing Goals in Investigation ◦ Gather information while fresh ◦ Assess potential risks ◦ Identify coverage issues © The McCoy Law Firm 2012
Work Product Privilege Attorney Client Privilege Expert Privilege © The McCoy Law Firm 2012
Formerly known as the Attorney Work Product Privilege The Cornerstone in Protecting a File © The McCoy Law Firm 2012
Work product comprises: ◦ Material prepared or mental impressions developed in anticipation of litigation or trial by or for a party or a party’s representatives, including, a party’s attorneys, sureties, indemnitors, insurers, employees or agents; or ◦ A communication made in anticipation of litigation or for trial between a party and a party’s representatives, including, a party’s attorneys, sureties, indemnitors, insurers, etc. © The McCoy Law Firm 2012
Most critical component If you don’t have this, you don’t have anything The rules of civil procedure do not define “anticipation of litigation” © The McCoy Law Firm 2012
National Tank v. Brotherton (Tex. 1993) ◦ Objective component a reasonable person would have concluded from the totality of circumstances surrounding the investigation that there was a substantial chance litigation would ensure ◦ Subjective component the party resisting discovery believed in good faith that there was a substantial chance litigation would ensue and conducted the investigation for purposes of preparing for the litigation © The McCoy Law Firm 2012
Employer knows this employee is suit happy Employer has no reason to believe employee would ever sue until he is served with suit papers Is this the type of injury that would likely throw off a suit? Routine accident reports will never be privileged © The McCoy Law Firm 2012
◦ Identity of witnesses, witness statements and contentions of the parties ◦ Trial exhibits ordered disclosed ◦ Identification of potential parties or persons with knowledge of relevant facts ◦ Any photograph that a party intends to offer into evidence ◦ Any product falling within exception to Evidence Rule 503(d) ◦ Witness statements © The McCoy Law Firm 2012
Core attorney work product is absolutely privileged ◦ By the attorney or his representative Written memos, case evaluation -- containing mental impressions, opinions, conclusions or legal theories All other material can be produced upon showing of substantial need and undue hardship © The McCoy Law Firm 2012
Overlaps work product privilege Who is Entitled? ◦ Client and/or representative and Lawyer and/or representative ◦ Lawyer and his representative ◦ Client or lawyer and another party in pending action regarding matter of common interest ◦ Communications between representatives of client ◦ Lawyers and their representatives representing same client © The McCoy Law Firm 2012
Person, corporation or other entity who is rendered professional legal services by a lawyer or who consults with a lawyer with a view toward obtaining professional legal services © The McCoy Law Firm 2012
A person having authority to obtain professional legal services or to act on the legal advice Any person who for purpose of effectuating legal representation for client makes or receives confidential communication while acting in scope of employment for client © The McCoy Law Firm 2012
Any person who the client believes is authorized to practice law in any state or nation Lawyer’s representatives are those employed by lawyer to assist lawyer in rendition of professional legal services © The McCoy Law Firm 2012
Depends on speaker’s intent Generally, confidential if not intended to be disclosed to third persons © The McCoy Law Firm 2012
Survives termination of attorney client relationship Survives conclusion of matter that caused representation © The McCoy Law Firm 2012
◦ Crime/fraud exception ◦ Communications relevant to parties who claim part of estate ◦ Breach of attorney client relationship ◦ Attested document for which attorney is attesting witness ◦ No privilege for actions between multiple clients ◦ Communications concerning fee arrangement © The McCoy Law Firm 2012
Hire after litigation anticipated, if possible Consulting expert only discoverable if his opinions shown to testifying expert Best to have defense counsel do the hiring ◦ Plaintiff’s attorney can potentially reach this witness if carrier does the hiring Unclear if expert’s materials would constitute “core” work product © The McCoy Law Firm 2012
Voluntary disclosure waives privilege Consenting to disclosure of any significant part of privilege waives privilege Don’t turn file over to anybody other than the insured or the attorney © The McCoy Law Firm 2012
Written demand letter is best for establishing anticipation of litigation If plaintiff has attorney, document your file that he threatened to sue ◦ Representation by an attorney alone doesn’t attach privilege Do a routine and “special” investigation Utilize defense counsel to conduct sensitive investigations © The McCoy Law Firm 2012
Not Privileged Tape good statements -- Summarize bad statements Notes have better likelihood of remaining privileged © The McCoy Law Firm 2012
Be clear in assignment Communicate clearly as to exactly what you want and what you don’t want © The McCoy Law Firm 2012
Insurance Defense Ethical Pitfalls for Counsel and Claims Professionals
Ethics in Mediation Sandy Garrett, Chief Disciplinary Council, TBPR Richard Murrell, Moderator.
The Regulatory Process 1. Statistics first. 2. Responsibilities of the Client Assistance Office and the Disciplinary Counsels Office. 3. Tips on helping.
EXPERT EVIDENCE: GETTING IT RIGHT Presentation to HICFG by Alistair Webster Q.C Elizabeth Nicholls.
I NVESTIGATOR AND A TTORNEY R ELATIONSHIP E THICS P ROFESSIONAL P RIVATE I NVESTIGATORS A SSOCIATION OF C OLORADO M AY 05, 2010 Dean A. Beers, CLI Forensic.
Best Practices for In House Counsel Andrea C. Okun General Counsel Merit Management Group LP.
New Hampshire Statutes Governing Insurance Claim Practices Presented by: Michael W. Wallenius Getman, Schulthess & Steere, PA Three Executive Park Drive.
LEGAL 101 – Two Favourite Concepts: 1.Without Prejudice and 2.Client Legal Privilege THINK.CHANGE.DO.
© 2010 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. The Insiders View On E-Discovery In North Carolina Robert R. Marcus Jon Berkelhammer Smith Moore.
Freedom of Information Act 2000 Sarah Hanson Partner CMS Cameron McKenna LLP Tel: +44 (0) 20.
PLANNING THE AUDIT Individual audits must be properly planned to ensure: Appropriate and sufficient evidence is obtained to support the auditors opinion;
Order In the Court Lessons from Twenty Years As An Expert Witness Terry C. Wicks, CRNA, MHS Catawba Valley Medical Center Hickory, North Carolina.
Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 10 Protection of News Sources/ Contempt Power McGraw-Hill/Irwin © 2013 McGraw-Hill Companies.
1 Toronto Head Office: 350 Bay Street Suite 1000 Toronto, Ontario M5H 2S6 Mississauga Office: 2 Robert Speck Pkwy. Suite 750 Mississauga, Ontario L4Z 1H8.
Use and Disclosure of PHI- Overview and Update on Significant Issues Marc D. Goldstone, Esq. Hoagland, Longo, Moran, Dunst & Doukas, LLP 40 Paterson Street.
Coming to a Legal Malpractice Action Near You? The Fiduciary Duty Exception to the Attorney-Client Privilege Donald Patrick Eckler Pretzel & Stouffer,
PROTECTING YOUR COMPANY FROM LIABILITY Jeffrey A. Walker Walker & Mann Laurel Steet, Suite 204, Rancho Cucamonga, CA Phone: Fax:
Successful Subrogation By: Doris T. Bobadilla, Esq. Presented to CEU Institute.
Ethics for Alaskas Executive Branch A Self-Guided Training Tool.
© 2011 The Magnes Group Inc. HOW CAN I PROTECT MYSELF FROM AN E&O LAWSUIT?
Reporting Child Abuse and Neglect What School Personnel Need To Do Module IV What happens after reporting REFER TO HANDOUTS 5 and 11.
Terminating an In-House Attorney Employment Law and Litigation Group New York, NY October 5, 2012 Prepared by Bruce Brafman Copyright 2012.
CAI - Illinois Presents Financial and Legislative Updates for Property Managers Presenters: David Sugar Lara Anderson.
Legal Due Diligence for Acquiring Business in India – Dos & Don'ts of Formulating an MoU 1 August 2008, PHD chambers of Commerce & Industry, New Delhi.
A GIA is a contract between a surety company and a contractor (or subcontractor)/principal. A GIA is a standard, typical document in the construction.
1 Copyright © 2011 by Mosby, Inc., an affiliate of Elsevier Inc. Chapter 18 Legal Issues in Health Care.
THE CALIFORNIA PUBLIC RECORDS ACT City of Chula Vista.
Mark Radford, Partner, Colin Biggers & Paisley, Australia Conflicts of interest faced by reinsurance brokers and duties owed by producing and placing brokers.
A Guide to Providing Ethical and Legal References.
© 2016 SlidePlayer.com Inc. All rights reserved.