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July 13, 2006

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Comments

Rob Boggs

Actually you might want to bring three copies. I was once taken to task by a judge for giving him a highlighted case without also providing the opposing counsel with a highlighted copy. The judge felt that highlighting was a form of argument and that the other counsel was entitled to know what you were emphasizing.

Evan

Excellent point.

FredN.

I've done the 'hand up the highlighted copy' before, and one time the judge gave a wry little smile, and said, "I see counselor has decided what parts I should read and what parts I shouldn't."

It wasn't funny at the time, but it is now. The fact is, the judge actually did focus on the highlighted parts...

Eh Nonymous

"Highlighting is a form of argument" - a frivolous contention, but never when made by a judge to counsel.

If I bold every other word, that doesn't make it any different. I can draw the court's attention on the record to the bits I think are significant. But providing my (highlighted) work product incidentally to the judge, while providing the same _case_ but not _comments_ to opposing counsel doesn't rob them of any meaningful opportunity.

Unless it does.

And in any event, in case of a tie the judge wins. :)

ipse dixit

Would doing this (i.e. handing the judge and/or opposing counsel) constitute a waiver of work-product?

Evan

ipse dixit: You mean a waiver of the work-product privilege, I think, so that the opposing party could ask for all the work-product you've done on the case. I wouldn't worry about it myself. I can't imagine the opposing party filing a motion for your work product, then filing a motion to compel when you refuse to hand it over and arguing to the judge that you waived the privilege by letting the judge have a case. Others can weigh in if they disagree.

Lex Aquila

This is a great practice point. I've never had a chance to do this, but it's a great idea. I see little or no downside. Just bring the extra copy for opposing counsel as well as clean copies--just in the case the judge gets snippy such as the examples above.

ipse dixit

Evan,

I don't believe "work-product" is a privilege in the same sense that the "attorney-client privilege" is a privilege.

The work-product doctrine is simply a protection afforded lawyers.

himself

I attach copies of cases (marked up) when I give the judge curtesy copies.

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