Fall 2009 - Atlanta - Divorce Lawyer - Family Law - Atlanta Georgia

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Witness Consultant As OmbudsmanDivorce cases are especially delicate and privatematters. We are often faced with very demanding clientsgoing through the absolute worst times in their lives.Even for the most even-tempered of counsel, there isthe possibility that the relationship between counseland client could fray. One of the valuable roles a goodwitness consultant serves is as ombudsman betweenthe lawyer and the client. For example, you becomefrustrated with the client because he/she answers thesame question differently each time it is asked and theclient becomes frustrated with your frustration. It hasbeen my experience that a witness consultant can often bea lawyer’s best friend, by helping to bridge those kinds ofdivides and maintain and preserve a strong relationshipbetween counselor and client.Cost SavingsFinally, in most cases, the rate charged by a witnessconsultant is substantially lower than the hourly ratecharged by the attorney, particularly the partner incharge. Therefore, practitioners may find that thecost/benefit analysis favors the retention of a witnessconsultant, allowing for proper and effective preliminarypreparation of the witness while you focus on preparingother aspects of the case. Once the preliminarypreparation is completed, the consultant and lawyer oftenwork in tandem to complete the preparation.Considerations In Conjunction With Retaining AWitness ConsultantHowever, retention of a witness consultant is nota decision to be made lightly. If you elect to employ awitness consultant, you must give consideration to thelegal and practical implications of that decision.Legal ConsiderationsTurning first to the legal implications of a decision toemploy a witness consultant, you must be prepared toaddress the propriety of the communication itself andthe protection it is to be afforded under either (or both)attorney-client privilege or work product protection. It iscritical that you research how courts in your particularjurisdiction have handled the use of witness consultantsand the issue of privilege before engaging the consultantto ensure that the consultant’s work conforms with thelaw in your jurisdiction.Be aware that while the use of trial consultants isgrowing the case law is relatively sparse. Judges oftenhave a particular bent on whether and under whatcircumstances the communications between a client anda witness consultant is protected. Accordingly, while itis necessary for you to be familiar with the law in yourparticular jurisdiction, it is equally important to determinethe practice of the particular judge before whom you areto appear.Protection under the attorney work product doctrinehas been afforded to litigants at the federal level. Ofparticular relevance to this issue is the decision ofthe Third Circuit Court of Appeals in In re: CendantCorporation Securities Litigation, 343 F.3d 658 (3d Cir.2003). In Cendant, Dr. Phil McGraw was retained as a trialconsultant by Ernst & Young. Opposing counsel soughtto inquire of a former Ernst & Young employee, SimonWood, as to his conversations with Dr. Phil. The Courtdetermined (at p.660):Compelled disclosure of the substance of conversationsbetween Wood, his counsel and Dr. McGraw wouldrequire disclosure of communications protected by thework product doctrine. The communications took placeduring a consultation that focused on those issues thatcounsel and Dr. McGraw perceived to be central to thecase. Moreover, the communications were intended tobe confidential and made in anticipation of litigation.As such, the communications are at the core of the workproduct doctrine and are only discoverable upon ashowing of rare and exceptional circumstances.The Third Circuit concluded by finding no exceptionalcircumstances present, the “communications merit workproduct protection” and that while it believed “Wood maybe asked whether his anticipated testimony was practicedor rehearsed” the “inquiry should be circumscribed.”Notably, in concurrence, Justice Garth found that theattorney client privilege would also be applicable, citingto an article by Stanley D. Davis and Thomas Beisecker,Discovering Trial Consultant Work Product: A New Wayto Borrow an Adversary’s Wits?, 17 Am. J. Trial Advoc.581, 626-27 (1994), which explains that:‘communications between a client practicingtestimony and a consultant are not discoverablebecause ‘interwined with the client’s responsesto mock questions and the consultant’s reactionsthereto, will inevitably be client communications… which are … intended by the client to be aconfidential part of the communication. Extirpatingthe comments of the consultant from this contextmay well be impossible without bringing alongthese communications and thus frustrating thepurpose of the attorney-client privilege.’In New York, for example, under appropriatecircumstances, the protection has been extended underthe cloak of the attorney-client privilege by the SecondCircuit and the Southern District of New York. See,e.g., In Re Grand Jury Subpoena Dated March 24,2003, 265 F.Supp.2d 321, 332-34 (S.D.N.Y. June 2, 2003)(“it is common ground that the privilege extends tocommunications involving consultants used by lawyersin performing tasks that go beyond advising a client asto the law”); United States v. Kovel, 296 F.2d 918 (2d Cir.1961) (privilege applies to communications of a thirdpartymade at the request of an attorney or the clientThe Family Law Review 16Fall 2009
where the purpose of the communication was to put inusable form information obtained from the client).In February 2008, the Northern District of California,in Hynix v. Semiconductor Inc., v. Rambus Inc., 2008WL 397350 (N.D. Cal. Feb. 10, 2008), concurred with theholding of the Third Circuit in Cendant, and specificallyidentified the limited questions that may be asked of theclient with regards to a witness preparer. The Hynix courtdetermined that:the parties may ask a witness whether he orshe met with a jury consultant, the purpose of anysuch meeting, who was present, the duration ofthe meeting and whether the witness practicedor rehearsed his testimony. The court will notpermit questioning beyond those limited pointsbecause inquiring into work-product protectedmaterial creates unfair prejudice and doing so willlead to both confusion and delay. Either of thesereasons justify precluding some of the proposedquestioning under Rule 403.In an effort to buttress any attempt to pierce attorneywork product protection or attorney client privilege,consider implementing two measures:• If you elect to employ a witness consultant itshould be pursuant to a written retainer agreementclearly defining the consultant’s role as an agentof the firm. It formalizes the retention and makesthe propriety of the relationship less susceptible tochallenge.• In accordance with the Cendant decision,consideration should be given to whether counselshould be present for any meetings between thewitness consultant and the client. In many casesthe lawyer’s presence, particularly in the firstsession or two may inhibit the development of arapport between the witness and the consultant.Practical ConsiderationsBeyond the legal implications attendant to yourretention of a witness consultant, you must also considerthe practical implications. While lawyers are governedby various model rules and ethical codes, there are noexternal controls whatsoever on the conduct of trialconsultants. Accordingly, you need to do your homeworkand know who you are hiring.It is critical in choosing a witness consultant, as inchoosing any professional, that the person be interviewedthoroughly and references verified to determine whetherthe consultant can actually deliver on representationsmade. The vast majority of consultants are members ofan organization known as the American Society of TrialConsultants (ASTC). The website for the organizationis www.astcweb.org. As an initial screening matter, itis good to know your consultant is a member of theASTC. A review of the ASTC website will reveal thatthere is a Professional Code, which provides for EthicalPrinciples, Professional Standards, Practice Guidelinesand Commentary.The problem is that the ethical principles areaspirational and members of the ASTC are not subjectedto enforceable internal standards. In addition, there areno standards for admission, no core skill requirementsor training and no continuing education requirements.As a result, even if the witness consultant you retain is amember of the ASTC, that retention may be susceptible toattack at trial. Accordingly, it is something that you needto be prepared to address.The witness consultant must also be someonewith whom you are able to work closely. You and thewitness consultant should be compatible in style andtemperament. For example, not all witness consultantswork alone with a client. They do not want to. Somewitness consultants, instead of training a witness onhow to properly handle questions (not substantively, buttechnically), come in, listen to testimony and start fixingand tweaking. If you require a consultant who can workalone with the client or one who is available to workwith you from the inception of the preparation, witnessconsultants like the ones in the above examples may notbe right for the engagement.Finally, notwithstanding the potential upside toinvolving a witness consultant, a witness consultantis not an attorney. Attorney oversight is critical to thesuccess of the representation and under no circumstancescan you abdicate your role. It is your case and you mustremain in charge. You must be available to familiarizethe witness consultant with the case to maximizethe effectiveness of the preparation and remainintegrally involved in that preparation to maximize theeffectiveness at deposition or trial. FLRMichael A. Mosberg, a partner withSheresky Aronson Mayefsky & Sloan,LLP in New York, represents clients in allaspects of matrimonial litigation. Prior tojoining the firm, he served as a law clerk tothe Honorable Virginia M. Morgan of theUnited States District Court for the EasternDistrict of Michigan. . Mosberg was recentlyselected as one of the Ten Leaders in Matrimonial and DivorceLaw in New York City under the age of 45. He is a memberof the Family Law Section of the American Bar Associationand currently serves, by appointment, on the Executive andMembership Committees for the Family Law Section of theNew York State Bar Association and as the Secretary of theMatrimonial Law Committee of the Association of the Bar of theCity of New York.The Family Law Review 17Fall 2009
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Fall 2009 - Atlanta - Divorce Lawyer - Family Law - Atlanta Georgia

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