Advocate
THE FLORIDA BAR TRIAL LAWYERS SECTION
The
www.flatls.org
Vol. XLI, No. 3
Spring 2013
MESSAGE FROM THE CHAIR:
Yo u m a y b e
aware that our Trial Lawyers Section
is governed by an
Executive Council
consisting of some
twenty-four attorneys from around
the State of FloriWayne Helsby
da. The Executive
Council members
are plaintiff ’s attorneys, defense
lawyers and some who practice in the
area of commercial litigation. They are
from different areas of the State. This
year, more than any I can remember,
the members of the Executive Council
have wholly embraced the idea of “giv-
ing back” both their time and financial
resources to programs that are making
a huge difference in peoples’ lives. Our
initiatives have been ambitious and
time consuming, yet incredibly fulfilling.
At our Section’s Annual Summit
this past January, which was chaired
by Pensacola attorney Bob Palmer, we
gathered over eighty middle and high
school civics teachers from Orange,
Osceola, Lake, Brevard and Seminole
counties, and treated them to a two
day program called “the Teacher’s Law
School”. Presentations were made to
these teachers on a variety of topics
related to our American system of
government, and the significance of
our judiciary system. An all star lineup of prominent judges and attorneys
spoke about the Constitution, the
Amendments, the importance of our
jury system, an anatomy of a civil and a
criminal trial, the branches of government and the like. Courtney Grimm, a
member of our Executive Council from
Jacksonville, chaired the program. She
was assisted by Executive Council
members Mindy McLaughlin from
Tampa and Katherine Hunter from Ft.
Lauderdale. It is an understatement to
say that the program was enormously
successful. The teacher participants
were incredibly enthusiastic, and to
a person came away with a new apcontinued, page 3
BUILDING A BELIEVABLE CASE THROUGH
CREDIBLE WITNESS TESTIMONY
By Alan R. Dial and Leslie Ellis*
A trial attorney’s ultimate goal
is to persuade the jury to believe
his or her version of the facts. In
most cases, evidence is established
through the testimony of witnesses,
and if jurors do not trust or rely upon
the witness’s information, they probably will not believe the attorney’s
theory of the case. Accordingly, an
attorney’s case may only be as good
In This
Issue:
as the witnesses he or she calls to
testify. Indeed, an attorney may have
great facts, strong case law, and a
sympathetic jury, but if his or her
witnesses lack credibility, obtaining
a favorable verdict will be next to
impossible.
In this article, we focus on four
common credibility issues that counsel may encounter when deciding
whether to call a witness to testify.
These include (1) inconsistent statements, (2) improper motivation and
bias, (3) prior misconduct, and (4)
the witness’s demeanor on the stand.
After discussing how these issues
may affect a witness’s credibility,
we then address how to proceed
once these credibility pitfalls have
continued, page 6
My Continuing Legal Education.................................................................................................................4
Advanced Trial Advocacy 2013..................................................................................................................11
Are Communications with a Corporate Client’s Former Employees Protected By Attorney-Client Privilege?....15
Upcoming Meetings....................................................................................................................................17
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2
CHAIR’S MESSAGE
from page 1
preciation for lawyers and our legal
system. At the final “critique” session,
one participant stood up to confide in
the group that before she came to the
program, she had seriously contemplated retirement because she had lost
her enthusiasm for teaching. With a
huge smile on her face, she thanked us
for what she considered to be “an absolutely fantastic program”, and pledged
to return to her classroom with a new
found fervor for teaching her children
about civics. Good stuff if you ask me.
Also at the Summit, the Section
hosted our annual Chester Bedell
Mock Trial Competition. This year’s
competition featured teams from each
of Florida’s eleven law schools. We also
added an additional round to the competition. Lead by Executive Council
members Kim Cook from Miami and
Charlie Bartlett from Sarasota, the
competition this year was nothing
short of riveting. For the first time in
years, two teams from the same school,
Stetson, advanced to the finals. The
final trial was presided over by Florida
Supreme Court Justice Fred Lewis.
The performance of students throughout this competition was simply
spectacular. The time and resources
that your Executive Council members
devote to this program is staggering.
Remember that today’s mock trial
participants are tomorrow’s Florida
lawyers. As a result of this competition,
the participants are unquestionably
much better equipped and prepared to
serve as lawyers to the citizens of our
great State.
Speaking of equipping attorneys,
the Summit also featured our Section’s
annual Trial Certification Review
Course. Attorney Ed Cheffy from
Naples has been spearheading this
program on behalf of our Section for a
number of years. The course was once
again well attended, and included a
broad range of presentations, including a lecture on evidence from the ever
popular Professor Charles Ehrhardt.
Lastly, the Executive Council once
again voted to donate to the Florida
Bar Foundation a gift of $75,000. Like
last year, the Section’s gift will be used
to fund legal positions to assist underprivileged children. As trial lawyers,
we all appreciate the importance of
obtaining legal representation in the
course of our judicial process. So many
Floridians are simply unable to afford
that representation, especially the
foster children of our State. Our gift
will hopefully play at least a small part
in assisting these children through
the legal challenges in their lives. The
Executive Council is also hopeful that
our gift will spur other Sections and
individuals to likewise contribute to
this most worthy cause.
My term as Chair of the Section is
quickly coming to a conclusion. I have
been involved in various Bar related
positions both at the State and local
level for over thirty years now. As I
reflect on this past year, I can honestly
say that I have never been more proud
to be associated with a group of people
as I have with our Trial Lawyers Executive Council. They all deserve our
utmost appreciation.
The Advocate is prepared and published by the Trial Lawyers Section of The
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Wayne L. Helsby, Winter Park.......................................................................Chair
Theodore C. Eastmoore, Sarasota........................................................Chair-elect
Hector A. Moré, Orlando......................................................Secretary / Treasurer
Craig A. Gibbs, Jacksonville.............................................. Immediate Past Chair
Michael Flynn, Ft. Lauderdale.................................................................... Editor
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not of The Florida Bar or the Section.
3
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MY CONTINUING LEGAL EDUCATION
By Steven A. Reisler*
I received my Continuing Legal
Education Compliance Notification
this month.
It’s not as though I really needed
to be reminded about my CLE obligations. Today, I got two CLE flyers
by snail mail and three by email. I
sometimes receive more email CLE
announcements than dubious invitations written in peculiar legalese
seeking my help to smuggle billions of
dollars out of Nigeria. Some days, I get
five, six, seven, or more electronic CLE
invitations, often warning me that
admission prices will go up tomorrow
or that seats are limited for the hottest
legal education course about EU regulation of hydroponic eggplant farming
in Cyprus or that I can get three years’
worth of legal education credit by attending a week-long seminar sunning
myself on the beach sipping umbrella
drinks in Tahiti.
I remember, back when I was a
newbie in the Bar, hearing the “old
timers” talk about “the practice” when
nearly every lawyer in the state knew
nearly every other lawyer (and judge)
on a first-name basis. Back then, your
“continuing legal education” consisted
of a client stiffing you for your fee or
your pleadings being bounced out of
court on the technical mystery of a
demurrer. I am not of that generation, but I do remember a few decades
back when the Bar Association was
the only game in town for continuing
legal education. The course offerings
then were a limited and rather stodgy,
mainstream fare, but each course was
filled to overflowing and you would
recognize half or more of the lawyers
in attendance. Of course, compared to
now, there were also only half as many
lawyers to know.
Today, a large number of continuing education offerings are available
as “webinars,” as “podcasts,” as audio
and video productions, and, perhaps
one day, as CLE video games (Mortal
Kourtroom Kombat, Grand Theft Auto
Trial, and Call of Ethical Duty 3?). I do
not eagerly await the .1 credit Twitter
CLE delivered to one’s smartphone in
140 characters or less (OMG U frgt 2 fil
cmplnt U R so SOL call E&O insur &
givup license, LMAO ethicsdept WSBA
#discnotices).
Continuing legal education is a good
idea, in concept, although like everything else in our
commodity culture
it has become a
business. The captive “consumers”
of this business’s
commodities are
us. Like some free
marketplace of
jurisprudence on
steroids, we CLE consumers can now
choose from a smorgasbord of continuing legal education courses in such
cutting-edge fields as coffee barista
workplace injuries; the law of beer
brewing in Saudi Arabia; renewable
green technologies used by the Pentagon in war zones;1 the mock trial of an
insanity defense to a littering prosecution; how to use your smartphone for
everything except making a telephone
call; and antisocial networking for
curmudgeonly antisocial legal counsel. Diversity is good, as is freedom of
choice, but will the “competition” in the
marketplace of continuing legal education eventually lead us to the Facebook
vacuity of law qua social networking?
If I total up the hours I have spent
in continuing legal
education over a
multi-decade career, then I probably have attended
law school twice.
Perhaps I should
tout this fact to
clients, for if having once attended
law school is good, and then doing
it twice ought to be better. Or would
clients wonder whether my continuing
legal education was a “re-do” like summer school, and did that explain why,
whenever they asked me a question,
I did not know the answer off the top
of my head and always had to “look it
up”?
Learning the law is a lifelong
endeavor. We learn from experience
and we learn from all. As a lawyer,
however, I have tried not to learn from
The business of
CLE resembles a
marketplace on
steroids
Ease your legal confusion.
www.floridabar.org/SCOPE
continued, next page
if a legal hassle or area of
law has you confused or full
of questions...
SCOPE
points you in the right
direction.
SCOPE
... To better serve the Bar and the public
offers the less experienced
attorney access to the
knowledge and resources
of a more experienced
attorney— fast, free and
over the phone.
SEEK COUNSEL OF PROFESSIONAL EXPERIENCE
Call 1-800-342-8060, ext. 5807
A program of the Young Lawyers Division of The Florida Bar
SCOPE applications can be found at
www.floridabar.org/SCOPE
4
MY CONTINUING LEGAL EDUCATION
from previous page
everyone. For instance, as a lawyer, do
I really have anything to learn from
the banks? One of them keeps trying
to entice me with a vanity charge card
branded as “Black,” as in black letter
law, I suppose. It is so “exclusive” that
it would cost me only $500 a year for
the status of carrying the thing in my
wallet, which, undoubtedly would put
me in the very exclusive company of
people such as those who respond to
the aforementioned solicitations to
help smuggle billions of dollars out
of Nigeria. The “Black Card” is so
exclusive that it is made out of pure
“carbon” – but then, so is a charcoal
briquette.
I think I’ll pass on the law-officebranded credit cards with one percent
annual cash rebates for frequently
litigating clients. I will also pass on
putting automatic-bill-pay provisions
into my fee agreements. I really do not
like getting invoices by email, I eschew
debit cards altogether, and I absolutely
refuse to permit creditors in advance
to electronically dip into my own bank
accounts to pay their bills.
I refuse to learn from the telecommunications companies I do business
with. Where do they get the cheek
to write clauses into their contracts
that say, notwithstanding every other
provision we’ve agreed upon, they
can unilaterally change our written
contracts at any time, in any way, for
any reason that they see fit? A contract
that one party can re-write unilaterally at will is not a meeting of the
minds, and, therefore, is not a contract.
Am I the only lawyer concerned
about medical providers’ near-universal practice of maintaining electronic
medical records and how easy it could
be for the unscrupulous to digitally
troll for my clients’ confidential information? Am I the only lawyer whose
eyes are getting pixelated reading
thousands of pages of PDF e-documents on a computer screen?
Am I the only lawyer who would
rather talk to a human being in person rather than interact with scripted
webpages that surreptitiously track
and record my every click and hover?
Am I the only one who prefers a
telephone conversation with a living,
interactive human being rather than
the interminable automated phone
systems intended to thwart communication and just make you give up in
total frustration? When you call my
law office, you get... me. You may still
hang up in frustration, but at least
you will have the small satisfaction
of knowing that if I bite your head of
(legally speaking), it was done dentally
and not digitally.
I am more environmentally conscious than most, but the “green”
brand slapped on so many business
practices makes this green attorney
see red! Who is kidding whom? If a
company sends me a “green” electronic
invoice to save paper, all that happens
is that I have to print it out, not they
who sent me the bill. The bill senders
save on postage, while I pay for their
printing. The cost of doing business
has been shifted, but no trees were
saved.
Anyone who understands the
technology knows that electronic
payments are no
more secure than
your computer’s
digital contacts
file that apparently has been
spoofed by Belarusian spammers selling satyr-like
sexual prowess in a pill, or the Pentagon’s nuclear missile launch codes
hacked by teenagers in Brazil from
their iPhones. I want paper bills that
I have to slice out of a sealed envelope, documents that I can hold in my
hands, annotate with a red pen, stamp
“PAID” with a black stamp, and file
into a brown folder in a gray file cabinet (no password or PIN needed, thank
you very much). I will pay my bills
with a paper check and my clients,
recipients of monthly, paper lawyer
bills in honest-to-goodness envelopes
bearing U.S. postage, will benefit from
my stalwart unwillingness to learn
some new things in my continuing
legal education.
Perhaps we need fewer CLEs about
“marketing the law” and more CLEs
about navigating the dangerous shoals
of this medieval law practice sailing
through an age of bits and bytes. No,
this is not a request for yet another
swarm of business consultants to sell
their services to lawyers in the guise of
a continuing legal education program.
Rather, it is a call for some commonsense instruction for a common-law
profession; No, your client’s unencrypted “confidential” emails to counsel are, practically speaking, no more
confidential than communicating by
megaphone at a shopping center; Yes,
blogging your latest social exploits to
the web will put you in the same hall
of fame as Tony Weiner; No, do not
ever reply to flame mail until after
you have sat on your equally caustic
draft response for at least 24 hours;
No, do not ever send your client a blind
cc of the email you send to opposing
counsel because you know your client
will “respond to all” with the most
embarrassing revelations; Yes, blacklist people who send you blast emails
with your address shown in clear on
the “to” line because nothing makes
you a juicier target
for spammers and
phishers.
Life should
be an educational
process. We are all
born stupid – the
goal of life is to die less so. I am
not sure; however, based on current
events, that homo sapiens sapiens appreciates this. Perhaps we need some
species-wide “continuing human education” to supplement our continuing
legal education. Maybe we should get
Continuing Human Education credit
for accumulating wisdom through the
school of hard knocks. Maybe humanity should accrue negative CHE credit
when those same hard knocks fail to
teach us anything.
It’s all about our continuing education as lawyers, and as human beings.
We are all born
stupid - the goal of
life is to die less so
5
Endnotes
1 Steven A. Reisler practices law in Seattle,
www.sarpllc.com. This article is reprinted with
permission from WSBA, 65 Washington Bar
News 9, at 22 (2011).
NOTE
This is not a joke but a real CLE offering.
BUILDING A BELIEVABLE CASE THROUGH CREDIBLE WITNESS TESTIMONY
from page 1
been identified and how counsel can
work with the witness to mitigate
them. Ultimately, the trial attorney
must carefully weigh the value of
the witness’s testimony against any
prejudices that might flow from that
witness’s credibility concerns; much
like a judge weighs the probative
value of evidence against its prejudicial effect under the Evidence rules.
Prior Inconsistent Statements
Prior inconsistent statements
pose one of the biggest threats to a
witness’s credibility. In a survey of
jury eligible adults, 60 percent of respondents said if
a witness in trial
makes a statement that contradicts an earlier
statement, that
witness is more
likely to be purposely lying than
making an honest
mistake. 1 Therefore, counsel must
uncover and address any inconsistencies that may exist. Before trial,
counsel should closely examine the
witness’s deposition transcripts,
transcripts from any formal or informal interviews, transcripts of
testimony given in similar or related
cases, and any other sworn testimony
that a witness may have provided. In
the case of an expert witness, counsel should review all of the expert’s
articles, treatises, previous court
testimony, or any other published
materials, paying special attention
to any that may contain statements
contrary to his or her current testimony. These materials can usually be
found through online legal research
sources.
After uncovering the inconsistencies, counsel and the witness should
review the circumstances surrounding the conflicting statements (such
as the wording of the various questions or temporal references in the
questions), as they might provide
an explanation for the inconsisten-
cies. The next step is to separate the
inconsistencies that are minor (and
thus not likely to appear on cross-examination) from those that are more
serious and could create substantial
credibility problems. Counsel should
then consider whether to wait for
opposing counsel to bring up the
inconsistencies on cross-examination
or to confront them during direct
examination to take the wind out of
the opposing counsel’s sails. If the
inconsistencies are more substantive, addressing them during direct
examination is preferable, so that
the witness can
explain them proactively. In most
cases, the witness
should be able to
clarify why he or
she took dramatically different positions. If the witness‘s prior statement was simply
wrong, and he or
she recognizes that, then the witness can simply explain the error to
the jury.
Counsel may also be able to
minimize the impact of inconsistent
statements when conducting voir
dire. If the judge will permit attorney voir dire, counsel can include
a question that asks jurors if they
have ever changed their minds about
something important, made statements that were inconsistent, or said
something they did not mean when
in a stressful situation. Prospective
jurors who respond in the affirmative may be able to empathize with
the witness. Those who do not admit
to such behavior may have very
little tolerance for error, and counsel
should consider striking them from
the venire.
Improper Motivation and Bias
The dual issues of motivation
and bias also pose significant credibility issues. Improper motivation
and witness bias are created when
the witness has a vested interest
Addressing witness
credibility pitfalls
will be a key to
presenting witness
testimony
6
in the outcome of the case. Two examples of witnesses who may have
a vested interest are the expert witness, who is receiving a fee for his
or her testimony, and the corporate
representative, who is employed by
the defendant or plaintiff and feels
pressure to vigorously defend the
company.
The expert witness. Professional experts typically have testified
several times, and often many times,
for the same party or side in litigation. In a survey of more than 4,500
jury eligible adults, 50 percent of
respondents agreed that most expert
witnesses will say whatever their attorney wants them to say.2 Without
hearing anything about the case,
many jurors walk into the courtroom
skeptical of experts. They perceive
experts to be advocates, not objective witnesses. Expert witnesses
also tend to be well compensated for
their time. In one study, mock jurors
believed a highly paid expert witness
was more influenced by his compensation and rated him as less likable,
believable, trustworthy, and honest
than a moderately or modestly paid
expert.3 The same study also found
that mock jurors found a highly paid,
frequently testifying expert to be
least persuasive, and a highly paid
novice expert to be most persuasive,
as opposed to a modestly paid expert.
The highly paid, frequent expert was
also rated as less trustworthy, honest, believable, and likeable than the
other experts.4
Jurors are far more likely to
focus on the content of expert testimony when they can understand
it, and they are more likely to focus
on peripheral source cues (such as
credentials or compensation) when
they cannot.5 When the mock jurors
in the study could understand and
process the experts’ testimony, there
were no differences in ratings of the
highly, moderately, or modestly paid
experts.6
Therefore, the best way to mitigate
continued, next page
BUILDING A BELIEVABLE CASE THROUGH CREDIBLE WITNESS TESTIMONY
from previous page
any negative inferences associated
with a “hired gun” is to make sure
that expert’s testimony is as comprehensible as possible. Counsel should
also be sensitive to the difference
between being simple and being a
simpleton, and accordingly, the expert should avoid speaking down to
the jury. Instead, the expert should
use language that jurors themselves
would use, repeat complex concepts,
and use demonstratives to aid jurors
in comprehending complex information.
A less effective, but still important, way in which to mitigate the
hired gun perception is to focus on
relevant expertise over credentials,
locale, or other peripheral source
cues. It is more important that the
witness has many years of experience and is well versed in his or
her particular field than that he or
she has a degree from a prestigious
university or prior history with a
particular judge.
The corporate representative.
Jurors often view corporative representative witnesses as defensive,
overinvolved, and arrogant or as
disinterested, under-involved, and
condescending. In either case, the
corporate representative often feels
the pressure to vigorously defend his
or her company, sometimes to the
detriment of the company. Jurors
often are inherently skeptical of
executive witnesses, particularly in
light of the corporate scandals of the
last several years. Statistics show
that 66 percent of surveyed jurors
strongly agree or somewhat agree
that, when testifying in court, most
company executives will distort the
truth or lie to keep their company
out of trouble.7 Jurors assume that
executive witnesses have a vested
interest in the outcome of the trial,
be it financial or otherwise, which
weakens the executive’s credibility
in the eyes of the jurors. An overzealous executive can exacerbate the
problem. Corporate executives or
other representatives will often deny
even the most trivial error, even in
the face of evidence to the contrary.
Executives who engage in righteous
fist-pounding can drastically undermine their credibility in the eyes of
jurors, particularly if it is contrary
to reality.
Alternatively, jurors will not care
about a case when it is clear that the
executive thinks the case is a waste
of time. Serving on a jury requires
jurors to give up a great deal of their
personal and professional time, and
jurors react poorly to an executive
who does not view the case as important.
Counsel needs the executive to
understand that his or her negative
attitude is undermining the corporation’s ability to achieve a favorable
verdict. The executive should understand that being
too defensive on
the stand, or not
adequately preparing for testifying at trial, only
decreases the corporation’s chances
of victory. Indeed,
executives should
be made aware
that when they display negative or
arrogant attitudes, they are effectively writing a check to the other
side. An executive often becomes
more accommodating once he or she
is made aware of the consequences.
Counsel should also consider
which points the executive can
concede without doing irreparable
harm to the case and discuss those
concession points with the executive
or representative. Once the executive
learns which points to concede, his
or her position on those points that
cannot be conceded will be that much
stronger.
Counsel can employ tactics such
as getting someone else involved
in the preparation session who is
of similar age and status as the
executive, that is, a senior partner,
an outside consultant, or someone
else from the company at the same
level as the executive. With another
person present, lead counsel can
be the “good cop” and explain what
the executive is doing well, and the
other person can be the “bad cop” and
explain what the executive needs to
improve.
Videotaping witness preparation
sessions can also be extremely helpful. Counsel can use portions of the
videotape to show the executive what
he or she is doing well and what
needs improvement. Counsel can
also use portions of the videotape to
explain visually to the executive how
the jury will perceive certain pieces
of testimony.
One final note regarding corporate representatives: Their depositions are typically videotaped, and
the importance of
adequately preparing for the deposition cannot be
overemphasized.
Deposition video
can come back to
haunt any witness, particularly
an unpleasant or
unprepared executive during cross-examination.
Prior Misconduct
A third credibility concern is a
witness’s prior misconduct. Opposing counsel may attack a witness’s
credibility through the introduction
of his or her criminal record or other
bad acts. Federal Rule of Evidence
609 and similar state rules determine
the type of criminal convictions and
prior misconduct that may be used
for impeachment purposes and the
amount of discretion the judge has
over the admissibility of such evidence.8 Counsel should question the
witness, question others close to the
witness, and conduct Internet searches to uncover any prior misconduct.
In certain cases, counsel may also
consider performing a professional
background check on the witness.
Voir Dire presents
a good opportunity
to minimize the
credibility issues of
witnesses
7
continued, next page
BUILDING A BELIEVABLE CASE THROUGH CREDIBLE WITNESS TESTIMONY
from previous page
If the witness has committed prior
bad acts, the first step for counsel
is to attempt to limit the witness’s
exposure through motions on limine.
Indeed, judges can exercise their discretion to exclude certain prior bad
acts if they deem these acts are not
relevant to the witness’s testimony.
Thus, a motion in limine that narrowly tailors the witness’s testimony
and demonstrates that the prior misconduct is not relevant, but purely
prejudicial, may prevent opposing
counsel from introducing it.
However, if counsel has determined that a witness’s prior misconduct cannot be excluded through
such motions, the misconduct should
be handled much like prior inconsistent statements. If the misconduct is
significant, it should be addressed
plainly and openly during direct examination. By confronting the prior
misconduct on direct, the witness
will be able to either differentiate
the bad acts from his or her current
circumstances or exhibit remorse
for them and explain why he or she
would never do anything like that
again. The critical factor is that the
witness should be perceived as taking responsibility for the past behavior rather than trying to justify it.
If the bad acts are insignificant,
the witness must nevertheless answer any questions calmly and, most
importantly, not defensively. Counsel
should take great care preparing
the witness for these questions, as
the credibility of a witness who has
committed prior misconduct will be
heavily scrutinized by the jury.
Witness Demeanor
While it is important that witnesses convey their stories articulately
and persuasively, research shows
that those evaluating testimony
rely heavily on nonverbal cues as
well.9 Positive indicators of credibility include confidence,10 keeping
an open posture, making eye contact
with the audience or questioner, and
wearing appropriate attire. Negative
indicators of credibility include poor
posture, hesitating too long before
answering questions, not making
eye contact, fidgeting,11 and anxiety
or nervousness.12 Counsel should be
aware of these nonverbal cues and
should consider conducting preparation sessions with the witness to
ensure that the witness is able to
testify coherently, credibly, and persuasively.
A nervous witness is a classic
example of a witness whose demeanor can negatively impact the
credibility of his
or her testimony.
Nervous witnesses tend not
to listen to the entire question before
answering during direct examination, and they usually take a long
time to answer questions during
cross-examination. These responses
become a major credibility problem
because jurors often equate moderate to excessive nervousness with
dishonesty. If a witness is overly
anxious when answering or takes a
very long time to answer, jurors often begin to doubt the accuracy and
honesty of the responses.
A nervous fact witness needs
to be coached into becoming more
confident and comfortable with his
or her story. Counsel should spend
time during preparation sessions
going over what the witness thinks
his or her strengths and weaknesses
are as a communicator, what lines
of questioning he or she is worried
about, and what he or she would like
to make sure the jury remembers
about the testimony.
Counsel must also prevent nervous witnesses from being married to
a script. Such witnesses often want
to know beforehand what counsel
wants them to say, and it is very
tempting for counsel to give them the
“right” answers. Rather than focusing on scripts, counsel should focus
on topics. Counsel should discuss the
topics from multiple perspectives so
that, regardless of what question
is asked and by whom, the witness
feels comfortable and confident when
answering.
Counsel can also employ a technique called “looping” when preparing a nervous witness. Looping is
when counsel takes a fact from a
witness’s previous
answer and incorporates it into the
next question. It
emphasizes key
portions of a witness’s testimony
to the jury, keeps
the anxious witness focused on
counsel, and ensures that the jury hears key pieces
of testimony multiple times. It can
best be achieved with a witness who
can deliver short narratives that
follow a sequential order. After the
witness finishes one thought, the
attorney can restate the key facts in
follow-up questions. Looping can also
be used to clarify statements made
by witnesses who tend to say everything all at once or give compound
answers to simple questions. An attorney also can use looping to tease
out key statements the witness made
and can reexamine key portions of
testimony by going back over what
the witness has already said.
Thorough preparation for crossexamination is especially critical
with a nervous witness. Counsel
should review the types of questions
the witness will be asked during
cross-examination—compound questions, hypotheticals, double negatives, etc.—and model appropriate
ways in which to address each type.
Counsel should have an attorney
whom the witness has not met perform the mock cross-examination
during the preparation sessions
so that the witness is not too comfortable. Counsel can also conduct
the preparation sessions in a room
Positive indicators
of credibility include
witness confidence,
eye contact, and an
open posture
8
continued, next page
BUILDING A BELIEVABLE CASE THROUGH CREDIBLE WITNESS TESTIMONY
from previous page
unfamiliar to the witness, one that
resembles the look and feel of an
actual courtroom.
Conclusion
Witness testimony is the centerpiece of an attorney’s case at trial.
Before counsel calls a witness to
testify, he or she should identify
and fully evaluate that witness’s
credibility. Counsel should seek out
any inconsistent statements the witness might have made in the past;
uncover any of the witness’s improper motivations, biases, or prior
misconduct; and honestly assess the
witness’s communication skills. Analyzing witness credibility requires
carefully weighing the evidentiary
value of the witness’s testimony
against the prejudices associated
with the witness’s credibility issues,
and only after counsel has completed
this balancing test.
______________________
* Alan R. Dial is a partner in the
Litigation Practice Group in King
& Spalding’s Washington, D.C., office. His practice focus primarily on
complex civil litigation, white collar
criminal litigation, and internal investigations
Leslie Ellis, Ph.D., is a jury consultant at Kroll Ontrack/TrialGraphix in
Washington, D.C. She consults with
attorneys on complex civil and white
collar criminal cases. They can be
reached, respectively, at adial@kslaw.
com and [email protected].
This article is reprinted with permission from 39 The Brief 3, at 33 (2010).
Endnotes
1 Richard Stuhan, Melissa Gomez & Daniel
Wolfe, Impeaching with Prior Inconsistent
Statements, For the Defense, Apr. 2007, at 14.
2 Kroll Ontrack/TrialGraphix, Mock Juror
Survey (2003-06).
3 Joel Cooper & Isaac M. Neuhaus, The
“Hired Gun” Effect: Assessing the Effect of Pay,
Frequency of Testifying, and Credentials on the
Perception of Expert Testimony, 24 L. & Hum.
Behav. 149, 155-57 (2000).
4 Id. At 161-62.
5 Joel Cooper, Elizabeth Bennett & Holly
Sukel, Complex Scientific Testimony: How Do
Jurors Make Decisions? 20 L. & Hum. Behav.
379 (1996).
6 Id. At 166-68.
7 Kroll Ontrack/TrialGraphix, survey, supra
note 2.
8 Fed. R. Evid. 609 (a)—(e).
9 Gary Bond, Deception Detection Expertise,
32. L. & Hum. Behav. 339 (2008).
10 Gary Wells, Ronald C. Lindsay & J.P. Tousignant, Effects of Expert Psychological Advice
on Human Performance in Judging the Validity
of Eyewitness Testimony, 4 L. & Hum. Behav.
275 (1980).
11 John Conley, William O’Barr & E. Alan
Lind, The Power of Language: Presentation
Style in the Courtroom, 1978 Duke L.J. 1375.
12 Robert Bothwell & Mehri Jahl, The Credibility of Nervous Witnesses, 7 J. Soc. Behav. &
Personality 581 (1992).
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10
The Florida Bar Trial Lawyers Section presents
Advanced Trial
Advocacy 2013
ALL THE CLE and ETHICS HOURS
YOU NEED FOR THREE FULL YEARS
May 7 – 11, 2013
University of Florida
Fredric G. Levin College of Law
Gainesville, Florida
This
program will subsTiTuTe as one of The Trials
required for cerTificaTion
and recerTificaTion for
civil Trial
and
workers’ compensaTion
advanced regisTraTion required
The Advanced Trial Advocacy Seminar is a hands-on, learning-by-doing trial skills training. It is
intended for attorneys who have practiced a minimum of five years and are involved in a full time
litigation practice. Jury experience is preferable but not required.
This advanced seminar is a NITA style interactive format with judges and lawyers from around the
state. It provides all the required CLE and Ethics credits for the three year cycle. If you or someone
in your firm needs CLE credit or litigation training, this is the seminar for you. The faculty consists of
trial court judges and board certified trial lawyers from around the state. This is an intense interactive
program for both the novice and the experienced litigator.
Fifty-six (56) attorneys will be selected, based on a first-come, first served basis. When your
application is processed, you will receive program materials in advance of the program. The
case file for this program is used as a source of facts and law for the training. Following lectures,
discussion and demonstrations, you will learn primarily through participatory exercises. Following
your performances, you will receive suggestions from experienced Florida trial lawyers on how you
can be more effective. Your presentation will be videotaped and you will receive a one-on-one video
performance review. Advance preparation is critical to the success of the program and your own
learning. You are expected to attend all sessions. If you cannot, please do not apply.
CCLER PROGRAM
(Max. Credit: 39.0 hours)
General: 39.0 hours
Ethics: 11.0 hours
CERTIFICATION PROGRAM
(Max. Credit: 39.0 hours)
Business Litigation: 19.5 hours
Civil Trial: 39.0 hours
Workers’ Compensation: 39.0 hours
Seminar credit may be applied to satisfy CLER / Certification requirements in the amounts
specified above, not to exceed the maximum credit. See the CLE link at www.floridabar.
org for more information.
Prior to your CLER reporting date (located on the mailing label of your Florida Bar News or
available in your CLE record on-line) you will be sent a Reporting Affidavit if you have not
completed your required hours (must be returned by your CLER reporting date).
TRIAL LAWYERS SECTION
CLE COMMITTEE
Wayne L. Helsby — Chair
Theodore C. Eastmore — Chair-Elect
Thomas E. Bishop — CLE Chair
Candace S. Preston, Chair
Terry L. Hill, Director, Programs Division
HOTEL RESERVATIONS
A block of rooms as been reserved at the Hilton UF Conference Center Hotel, at the rate of $135.00
single/double occupancy. To make reservations, call the Hilton directly at 352-371-3600. The group
rate is available until the block is filled or until April 12, 2013, which ever comes first. After that
date, the group rate will be granted on a space available basis. When making reservations, please
reference group code FBTA13.
Schedule of Events
Tuesday, May 7, 2013
6:15 p.m. - 9:30 p.m.
Registration
Introductory Remarks
Demonstration of Opening Statements
Discussion of Effective and Ethical Opening
Statements
Wednesday, May 8, 2013
8:00 a.m. - 5:30 p.m.
Ethics Tutorial
Opening Statements and Case Analysis
Simplicity and Complexity of Cross Examination
Demonstration of Direct Cross of Expert and
Lay Witnesses
6:30 p.m. - 8:00 p.m.
Tutorial of Material Science Issues and Reception at UF Hilton
Thursday, May 9, 2013
8:00 a.m. - 5:30 p.m.
Ethics Presentation
Direct and Cross Examination of Material Science Engineers and Sports Science Experts
Jury Selection Tutorial and Jury Selection
The Art, Law and Science of Effective and Ethical Closing Arguments
Friday, May 10, 2013
8:00 a.m. - 5:30 p.m.
Ethics - Jury Misconduct
Direct and Cross of Medical Experts
Ethics from the Bench
Faculty Demonstration of Closing Arguments
and Discussion of Effective and Ethics in
Closing Arguments
7:00 p.m. - 9:00 p.m.
Reception and Dinner at UF Hilton
saTurday May 11 , 2013
8:30 a.m. - 1:00 p.m.
Closing Arguments
Inside the Jury Room Discussion
Faculty & Steering Committee
Robert C. Palmer, III, Pensacola — Program Co-Chair
Thomas Bishop, Jacksonville — Program Co-Chair
Kurt E. Alexander, Merritt Island
Hon. Linda R. Allan, Clearwater
Hon. Ralph Artigliere, Blue Ridge, GA
Mark A. Avera, Gainesville
Hon. Moses Baker, Jr., West Palm Beach
Hon. James M. Barton, Tampa
Darryl M. Bloodworth, Orlando
Jeffrey M. Cohen, Miami
Susan J. Cole, Coral Gables
Kimberly A. Cook, Miami
Thomas E. Dukes, III, Orlando
Theodore C. Eastmoore, Sarasota
Thomas S. Edwards, Jr., Jacksonville
Michael A. Estes, Orlando
S. William Fuller, Jr., Tallahassee
Craig A. Gibbs, Jacksonville
Richard A. Gilbert, Tampa
William E. Hahn, Tampa
Wayne L. Helsby, Winter Park
Clifford C. Higby, Panama City
Hon. Charlene E. Honeywell, Orlando
E. William Hoppe, Jr., Gainesville
Katherine Hunter, Davie
J. Charles Ingram, Orlando
Woodson Isom, Jr., Tampa
Hon. Claudia Rickert Isom, Tampa
Hon. Martin Kahn, Miami
Hon. John M. Kest, Orlando
Orman L. Kimbrough, Jr., Orlando
Joe “Skooter” Kinman, Tampa
Roy M. Kinsey, Jr., Pensacola
E.C. Deeno Kitchen, Tallahassee
Justice Jorge Labarga, Tallahassee
Thomas D. Masterson, St. Petersburg
Hon. Manuel Menendez, Jr., Tampa
Hector A. Moré, Orlando
Hon. John (Dean) Moxley, Jr. Titusville
Dennis R. O’Connor, Orlando
Hon. Victoria L. Platzer, Miami
Troy A. Rafferty, Pensacola
Michael S. Rywant, Tampa
George E. “Buddy” Schulz, Jr., Jacksonville
Mary Katherine Simpson, Tallahassee
Larry Smith, Deland
Robert F. Spohrer, Jacksonville
Hon. John E. Steele, Ft. Myers
Michael G. Tanner, Jacksonville
John W. Williams, Jr., St. Petersburg
Refund Policy
A $50 service fee applies to all requests for refunds. Requests must be in writing.
Registration fees are non-transferrable, unless transferred to a colleague registering
at the same price paid. No refund will be given after April 12, 2013.
Registration
ONE LOCATION: (202) UNIVERSITY OF FLORIDA, GAINESVILLE (MAY 7 - 11, 2013)
REGISTER BY MAIL, SEND THIS FORM TO: The Florida Bar, CLE Programs, 651 East
Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have any questions,
call 850/561-5831.
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ARE COMMUNICATIONS WITH A CORPORATE
CLIENT’S FORMER EMPLOYEES PROTECTED
BY ATTORNEY-CLIENT PRIVILEGE?
Joe L. Fore, Jr.
The scene: a plush conference room
in a law office, arranged for a deposition. You represent the defendant,
a large corporation, and you were
asked to prepare today’s deponent, a
former employee of the company. As
part of your preparations, you talked
to the former employee about her
tenure with the company and about
her knowledge of the issues in the
case. Things are proceeding smoothly
when opposing counsel begins to ask
the deponent about the steps she
took to prepare for the deposition.
She responds that she met with you.
Opposing counsel asks what you
two discussed. You object, correctly
noting that attorney-client privilege
extends to communications with your
client’s employees. Opposing counsel
responds, “But she’s not an employee;
she’s a former employee. Therefore,
she is not your client, and there is
no attorney-client privilege. Please
answer the question.” You renew your
objection and think to yourself: “Our
conversations were privileged, weren’t
they?”
Unfortunately—and somewhat
surprisingly—this question has not
been squarely addressed by Florida
courts. While federal courts have
generally recognized extension of the
attorney-client privilege to former
employees—at least where the former
employee relates facts that he or she
learned during the course of employment with the entity—the question
remains unresolved in Florida. Consequently, attorneys communicating with former employees should
be mindful that there is a chance
that their communications may not
be protected by the privilege and,
therefore, may be discoverable. This
article discusses relevant Florida and
federal case law on the issue in an effort to provide guidance to attorneys
making—or challenging—a claim of
privilege to communications with former employees of a corporate client.
Attorney Client Privilege in
the Corporate Context—Deason
and Upjohn
“The attorney-client privilege is
the oldest confidential communications privilege known in the common
law”1 and serves the important policy
goal of encouraging full disclosure
between clients and their attorneys.2
Now codified in Section 90.502, Florida Statutes, the privilege expressly
provides that corporations and other
business entities can be “clients”
under the rule and are entitled to
invoke the privilege.3 Because corporations must act through their agents,
however, application of the privilege
in the context of businesses is less
straightforward than in the context
of individuals.4
The Florida Supreme Court defined the scope of the attorney-client
privilege in the corporate context in
Southern Bell Telephone and Telegraph Co. v. Deason, 632 So. 2d 1377
(Fla. 1994). In Deason, the Supreme
Court held that communications
between counsel and employees of a
corporate client are privileged, so long
as five criteria are met:
(1) the communication would not have
been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of
his or her corporate superior;
(3) the superior made the request
of the employee as part of the
corporation’s effort to secure legal
advice or services;
(4) the content of the communication
relates to the legal services being
rendered, and the subject matter
of the communication is within
the scope of the employee’s duties;
(5) the communication is not disseminated beyond those persons who,
because of the corporate structure,
need to know its contents.5
The Court weighed the competing
goals of encouraging the truthseeking function of the discovery
process—which the court deemed
“the core of any litigation”—against
the need to encourage the “free flow of
information between an attorney and
client.”6 While the Court expanded
the privilege as it related to representatives of a corporate client, it did
so warily, recognizing that corporate
litigants could abuse the privilege
in order to shield communications
from discovery under the cloak of
attorney-client privilege.7 For that
reason, the court noted that “claims
of privilege in the corporate context
will be subjected to a heightened level
of scrutiny.”8
In reaching its decision, the Deason
Court relied on Upjohn Co. v. United
States, 449 U.S. 383 (1981). In Upjohn,
the United States Supreme Court
looked to the policy underlying the
attorney-client privilege in deciding
when communications with representative of a corporate client would be
protected:
Its purpose is to encourage
full and frank communication
between attorneys and their
clients and thereby promote
broader public interests in
the observance of law and
administration of justice. The
privilege recognizes that sound
legal advice or advocacy serves
public ends and that such advice
or advocacy depends upon the
lawyers being fully informed by
the client.9
To promote these policy goals, the
Upjohn court rejected the restrictive
continued, next page
15
CORPORATE ATTORNEY-CLIENT PRIVILEGE AND FORMER EMPLYOEES
from previous page
“control group” test for determining
whether communications with a corporate client’s agents were privileged,
instead holding that communications with even low-level employees
of a corporate client were protected
when those communications were: 1)
made to corporate counsel, 2) “at the
direction of corporate superiors,” 3)
to secure legal advice for the corporation, 4) concerning “matters within
the scope of the employees’ corporate
duties,” 5) when “the employees themselves were sufficiently aware that
they were being questioned in order
that the corporation could obtain legal advice.”10 Clearly, both Deason and
Upjohn support extending attorneyclient privilege to current employees
of the corporate client.11
Unfortunately, neither Deason nor
Upjohn expressly decided the question presented by our scenario: the extent to which corporate counsel’s communications with a former employee
might be covered by attorney-client
privilege. In Upjohn, the majority
opinion expressly declined to address
the issue, noting that the privilege’s
application to former employees had
not been raised at the trial court
or appellate level.12 Chief Justice
Burger, however, wrote a concurring
opinion in which he urged the Court
to clarify the scope of the privilege,
suggesting that the rule should apply when “an employee or former
employee speaks at the direction of
the management with an attorney regarding conduct or proposed conduct
within the scope of employment.”13
Somewhat surprisingly, no Florida
reported decisions appear to have
squarely addressed the issue of the
privilege in the context of former
employees.14 Perhaps even more surprisingly, this dearth of Florida case
law on the subject is not uncommon:
a number of other states also appear
to have left the issue unresolved, leaving federal courts sitting in diversity15
to opine on the likely outcome under
state privilege law.16 Partly due to this
absence of state law, a rather sub-
stantial body of federal case law has
developed concerning the application
of the privilege to communications
with former employees.17 Therefore, a
brief review of federal law on the topic
may prove helpful in determining the
privilege’s scope in Florida.
Relevant Federal Case Law
A number of courts—indeed, a
fairly clear majority of federal cases—
have extended Upjohn to include communications with former employees,
at least where the communications
relate to events or knowledge that
was within the scope of the employees’ duties during the former employees’ tenure with the company.18 Many
of these cases cite Upjohn’s policy
rationale, noting that the extension of
the privilege is necessary to achieve
the crucial goal of encouraging factgathering, thereby allowing attorneys
to render competent advice to corporate clients:
Because a corporation acts
through its employees, in the
case of a corporate client the
information counsel needs
typically must be obtained
from those of the corporation’s
employees who were involved
in the actions or incidents from
which the legal issue at hand
arose. Sometimes, as in this case,
a person with critical knowledge
of the relevant facts is no longer
employed by the corporation,
and in order to represent his
or her client effectively the
corporation’s counsel must seek
information from the former
employee.19
Some federal courts, however, have
been more skeptical in expanding the
privilege to protect communications
with former employees. These courts
focus on the lack of shared interest
between the corporate client and the
former employee.20 As one district
court bluntly noted, absent this
formal connection of employment,
communications with the former
employee are no more entitled to
16
privilege than communications with
any other third-party witness:
Former employees are not the
client. They share no identity
of interest in the outcome of the
litigation. Their willingness to
provide information is unrelated
to the directions of their former
corporate superiors, and they
have no duty to their former
employer to provide such
information. It is virtually
impossible to distinguish the
position of a former employee
from any other third party
who might have pertinent
information about one or more
corporate parties to a lawsuit.21
Other federal courts have latched on
to the part of the Upjohn test requiring that communications be made “at
the direction of corporate superiors.”22
As a consequence, these courts focus
on whether the corporation “directed
the former employee to cooperate
[and whether] it had the legal authority to do so.”23 This skepticism
toward extending the privilege to
former employees has been echoed by
some commentators.24 For example,
the Restatement (Third) of the Law
Governing Lawyers concludes that
attorney-client would normally not
apply to communications with former
employees because the employee and
corporation no longer have a formal
principal-agent relationship.25
In sum, a survey of federal case
law on the subject reveals several key
principles:
• There is apparent universal agreement that a privileged communication made by an employee during
their course of employment does
not lose its privileged status when
that individual ends his or her
employment relationship with the
corporate client.26
• The fairly clear majority rule is
that communications with former
employees are privileged, at least
where: 1) the communications in
continued, next page
CORPORATE ATTORNEY-CLIENT PRIVILEGE AND FORMER EMPLYOEES
from previous page
question related to information
obtained by the employee in the
scope of their employment, and 2)
the communication would otherwise be privileged under Upjohn if
the former employee still worked
for the company.27
• Beyond these circumstances, federal courts generally decline to
extend the privilege to cover communications with former employees. For example, several federal
courts have refused to extend the
privilege to protect communications between former employees
and corporate counsel occurring
during breaks in a deposition and
that were unrelated to the scope of
employment.28
Reading the Tea Leaves on
Florida Law
What does this jurisprudence augur for Florida law on the extension of
the attorney-client privilege to former
employees? At the outset, a party
seeking to establish the attorneyclient privilege under Florida law
faces an uphill battle. As a threshold
matter, “[t]he burden of establishing
the attorney-client privilege rests on
the party claiming it.”29 Additionally,
the Deason court made clear that
assertions of the privilege in the corporate context should be subjected
to “heightened scrutiny” in order
“to minimize the threat of corporations cloaking information with the
attorney-client privilege... to avoid
discovery.”30
A plain-text analysis of Deason,
arguably, provides little support for
extending the privilege to former
employees. First, the criteria listed in
Deason all refer to the “employee” who
made the communication. A “former
employee” is, by definition, not an
“employee,” an observation that has
not been lost on the Florida Supreme
Court:
Indeed, by definition an
“employee” can only be a
current employee since an
employee is “one employed by
another usually for wages or
salary.” Merriam-Webster’s
Collegiate Dictionary at 379
(10th ed.1994). Therefore, since
ex-employees obviously are
no longer “employed” by the
corporate defendant “for wages
or salary,” the term “employees”
cannot reasonably be construed
to include such a class.31
The importance of this distinction
as it relates to corporate clients is
recognized elsewhere under Florida
law. For example, assuming the
former employee is not otherwise
represented, opposing counsel are
generally permitted to contact former
employees directly under Rule 4-4.2
of the Rules Regulating the Florida
Bar because those former employees
“can no longer speak for or bind the
organization.”32
Second, another prong of the
Deason criteria requires that “the
employee making the communication did so at the direction of his or
her corporate superior,”33 which could
suggest that the privilege could never
apply to former employees. After all,
UPCOMING MEETINGS
April 11 - 13, 2013
Executive Council Meeting
California
June 26 - 29, 2013
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Boca Raton, FL
August 22 - 25, 2013
Executive Council Meeting
Destin, FL
November 14 - 17, 2013
Executive Council Meeting
Miami, FL
17
continued, next page
CORPORATE ATTORNEY-CLIENT PRIVILEGE AND FORMER EMPLYOEES
from previous page
in the absence of a consulting or other,
formal relationship between the
former employee and the corporate
client, the corporate client is no longer the former employee’s “corporate
superior.” As some of the above-cited
federal cases suggest, this lack of a
formal agency relationship is fatal to
the claim of privilege.34
Nonetheless, such a straightforward reading of Deason is likely
too simplistic, particularly in light
of the privilege’s purpose and the
majority of federal courts that have
interpreted similar language from
Upjohn as extending the privilege to
former employees’ communications.
In other words, an examination of
the reasoning of Deason suggests that
Florida courts may be more receptive
to the extension of the privilege to
former employees. The Deason court
relied on the same rationale cited in
Upjohn—the “established interest in
the free flow of information between
an attorney and client”35; subsequent
Florida cases have endorsed this
important policy rationale for the
privilege in the corporate context.36
Extending the privilege to cover communications with former employees
certainly furthers this goal, particularly in large companies or in cases
spanning long time frames, in which
many employees who have important
knowledge of the subject matter of the
litigation may no longer be with the
company. Moreover, Deason and its
progeny regularly cite to Upjohn with
approval.37 Federal courts located in
other states have interpreted similar
lower state-court reliance on Upjohn
as suggesting those states’ supreme
courts would extend the privilege to
cover communications with former
employees.38
One additional possibility bears
mention. Even if communications
with former employees are not protected by the corporation’s attorneyclient privilege, Professor Ehrhardt
suggests that they may very well
be covered by the “pooled interest”
doctrine39. The availability of this
doctrine, however, appears limited
in most situations involving former
employees. More commonly invoked
in situations involving co-parties,
the “pooled interest” doctrine—also
known as the “common interest,”
“joint defense,” or “pooled information” exception—allows “clients and
their respective attorneys sharing
common litigation interests may
exchange information freely among
themselves without fear that by
their exchange they will forfeit the
protection of the privilege.” 40 The
doctrine may, indeed, be applicable
in certain situations involving former
employees, such as when the former
employee and the corporation were
co-parties in a lawsuit or facing a
criminal investigation. Under those
(limited) circumstances, the parties
may be able to “demonstrate sufficient
commonality of interest to permit a
pooling of information... without the
loss of the protection of the attorneyclient privilege.”41 When the former
employee faces no personal liability
based on the subject of the litigation,
however, the former employee will
likely have no discernible interest in
the outcome of the litigation. Or, as
is often the case, the interests of the
former employee and the corporation
may actually be adverse, particularly
when the employment ended on bad
terms.42 Thus, it is likely that the
pooled interest doctrine will rarely
be available to extend attorney-client
privilege to former employees.
Conclusion
Ultimately, corporate clients seeking to invoke attorney-client privilege
under Florida law are most likely to
succeed when communications with
former employees hew most closely
to the criteria outlined in Deason.
Extension of the privilege to former
employees would be most defensible
when the communications: 1) were
made during the employee’s term of
employment and, therefore retain
their privileged status after employment ends, or 2) were made after
the employment ended, but concern
18
matters that relate to the former
employee’s scope of employment. Additionally, courts are more likely to extend the privilege when the interests
of the former employee and the corporate client are aligned—or, at least,
not adverse. Applying the privilege in
these situations comports with Deason’s requirement that “the content
of the communication relates to the
legal services being rendered, and the
subject matter of the communication
is within the scope of the employee’s
duties.”43 Counsel must recognize,
however, that former employees are
not likely to be treated as “the client”
for all purposes. Attempts to invoke
the privilege in other contexts—such
as communications relating to postemployment matters or to deposition
or trial strategy—are less likely to be
covered by privilege.
The absence of a definitive decision
by Florida courts warrants a cautionary approach to communications with
the former employees of a corporate
client. Attorneys attempting to assert
the privilege should ensure that their
factual scenario aligns with Deason
and Upjohn, and arm themselves
with persuasive authority from other
jurisdictions—primarily federal case
law— supporting the extension of
the privilege to former employees in
the event that the assertion of the
privilege is challenged.44
Endnotes
1 American Tobacco Co. v. State, 697 So. 2d
1249, 1252 (Fla. 4th DCA 1997) (citing United
States v. Zolin, 491 U.S. 554, 562 (1989)).
2 Id.
3 Fla. Stat. §90.502(1)(b).
4 See Christopher B. Mueller and Laird C.
Kirkpatrick, Federal Evidence § 5:21 (3d ed.
2011).
5 632 So. 2d at 1383. The Deason case—and
the general scope of attorney-client privilege
in the context of corporations—has been discussed previously in the pages of this journal.
See Ted C. Craig and Michael J. Higer, From
the Mailroom to the Boardroom: Deason and
the Scope of the Attorney-Client Privilege in the
Corporate Context, 69 Fla. B.J. 50 (Jan. 1995);
Janis Sue Richardson, Corporate Invocation of
the Attorney-Client Privilege and Work-Product
Doctrine, 68 Fla. B.J. 30 (Dec. 1994). As such,
this article will forego a detailed recitation of
continued, next page
CORPORATE ATTORNEY-CLIENT PRIVILEGE AND FORMER EMPLYOEES
from previous page
the case, except insofar as necessary to permit
an understanding of the issues.
6 Id. at 1383.
7 Id.
8 Id.
9 449 U.S. at 389.
10 Upjohn, 449 U.S. at 394.
11 For a more in-depth overview of the Deason
and Upjohn decisions, see Charles W. Ehrhardt,
Ehrhardt’s Florida Evidence § 502.3, at 380-83
(2012 ed.)
12 See 449 U.S. at 395 n.3.
13 Id. at 402-03 (emphasis added).
14 See Ehrhardt, supra note 12, § 502.3, at 380
n.4 (“Florida decisions have not addressed the
issue of whether communications between the
corporation’s counsel and past employees of the
corporation are protected by the corporations’
privilege.”)
19 Cool v. Borgwarner Diversified Transmission Products, Inc., 2003 WL 23009017, at *2
(S.D. Ind. Oct. 29, 2003); see also In re Coordinated Pretrial Proceedings in Petroleum Products, 658 F.2d 1355, 1361 n.7 (9th Cir. 1981);
Miramar Const. Co. v. Home Depot, Inc., 167
F. Supp. 2d 182, 184 (D.P.R. 2001); Command
Transp., Inc. v. Y.S. Line (USA) Corp., 116 F.R.D.
94 (D. Mass. 1987).
20 Barrett Industrial Trucks, Inc. v. Old Republic Ins. Co., 129 F.R.D. 515, 517-518 (N.D.
Ill 1990).
21 Clark Equipment Co. v. Lift Parts Manufacturing Co., Inc., 1985 WL 2917 (N.D. Ill.
1985); Infosystems, Inc. v. Ceridian Corp., 197
F.R.D. 303, 306 (E.D. Mich. 2000) (“[C]ounsel’s
communications with a former employee of the
client corporation generally should be treated
no differently from communications with any
other third-party fact witness.”).
22 449 U.S. at 394.
15 In diversity actions, federal courts apply
the privilege law of the forum state. See Fed.
R. Evid. 501; Millinazzo v. State Farm Ins. Co.,
247 F.R.D. 691, 696 (S.D. Fla. 2007) (“Florida
law governs application of the attorney-client
privilege in a federal diversity action.”).
23 John K. Villa, Corporate Counsel Guidelines § 1:3 (2011); see also Connolly Data Sys.,
Inc. v. Victor Tech., Inc., 114 F.R.D. 89, 93-95
(S.D. Cal. 1987) (noting that nothing in the
record indicated that the former employee was
required to speak to corporate counsel)
16 See, e.g., Wuchenich v. Shenandoah Memorial Hospital, 2000 WL 1769577, at *2 (W.D.
Va. Nov. 2, 2000) (“[N]o reported Virginia state
case has addressed the question of whether the
scope of the attorney-client privilege extends to
include communications with former, as well
as current, employees.”); Infosystems, Inc. v.
Ceridian Corp., 197 F.R.D. 303, 305 n.2 (E.D.
Mich. 2000) (noting that neither the parties
nor the court could locate any Michigan state
case on the subject); Nakajima v. General
Motors Corp., 857 F. Supp. 100, 104 (D.D.C.
1994) (recognizing that “District of Columbia
law has not addressed the issue of whether
the privilege extends to former employees of a
client corporation”); Gianfranco A. Pietrafesa,
Application of the Attorney-Client Privilege
to Communications with Former Employees,
200 New Jersey Lawyer 35 (1999) (noting a
complete lack of New Jersey case law on the
subject). But see E.I. Du Pont De Nemours
and Co. v. Medtronic Vascular, Inc., 2012 WL
1408815 (De. Sup. Ct. Mar. 13, 2012) (settling
the issue under Massachusetts law).
24 See Paul R. Rice, Attorney-Client Privilege
in the United States § 4:18 (2011 ed.) (“[C]onsidered from either a utilitarian or theoretical
perspective, it is difficult to rationally argue
that the privilege should apply to communications between corporate counsel and past
employees of the corporation.”); Mueller and
Kirkpatrick, supra note 4, at § 5:21 (“[F]ormer
agents do not fit comfortably into the category
of natural spokespeople for the corporation,
and it is hard to conceptualize them as the
embodiment of the corporate client.”).
17 For the sake of brevity, this article provides
only a brief overview of federal case law. For a
more thorough discussion of the subject at the
federal level, see Meloney Cargil Perry, Attorney-Client Privilege and Deposition Preparation of Former Employees, 57 FDCC Quarterly
303 (Spring 2007).
18 See, e.g., In re Allen, 106 F.3d 582, 606 (4th
Cir. 1997); In re Refco Inc. Securities Litigation,
2012 WL 678139 (S.D.N.Y. Feb. 28, 2012); In re
Flonase Antitrust Litigation, 723 F. Supp. 2d
761 (ED Pa 2010); United States ex rel. Hunt
v. Merck-Medco Managed Care, LLC, 340 F.
Supp. 2d 554 (E.D. Pa. 2004); Peralta v. Cendant
Corp., 190 F.R.D. 38, 41 (D. Conn. 1999); Rally
Mfg., Inc. v. Mr. Gasket Co., 1992 WL 211010,
at *10 n.14 (S.D. Fla. 1992); In re Worldwide
Wholesale Lumber, Inc., 392 B.R. 197 (D.S.C.
Bankr. 2008).
25 See Restatement (Third) of the Law Governing Lawyers § 123, comment (e).
26 See, e.g., Infosystems, 197 F.R.D. at 306;
Clark Equipment, 1985 WL 2917, at *6; In Re
Coordinated Pretrial Proceedings, 1361 n. 7.
27 See, e.g., In re Terrorist Attacks on September
11, 2001, 2008 WL 8183819, at *6 (S.D.N.Y. May
21, 2008) (“The vast majority of federal cases
hold that communications between company
counsel and former company employees are
protected by the attorney-client privilege if
they are focused on exploring what the former
employee knows as a result of his prior employment about the circumstances giving rise to the
lawsuit.”) (Internal quotation marks omitted)
(Emphasis added); Paul F. Rothstein and Susan
W. Crump, Federal Testimonial Privileges §
2:20 (2011 ed.) (recognizing that “most federal
courts subsequent to Upjohn have held that
the privilege covers interviewing former employees”); Aimee B. Anderson, Preserving the
Confidentiality of Investigations by In-House
and Outside Counsel, in A ttorney -C lient
Privilege in Civil Litigation 230 (Vincent S.
Walkowiak, Ed. 2004).
28 United States ex rel. Hunt, 340 F. Supp. 2d
554; City of New York v. Coastal Oil New York,
Inc., 2000 WL 145748 (S.D.N.Y. Feb. 8, 2000);
Peralta, 190 F.R.D. at 41.
29 See Deason, 632 So. 2d at 1383.
19
30 Id.; see also American Tobacco, 697 So. 2d at
1253 (citing Deason and noting that “Florida
will be especially vigilant with respect to claims
of attorney-client privilege as applied to corporations”).
31 H.B.A. Mgmt. v. Estate of Schwartz, 693
So.2d 541, 546 n.5 (Fla. 1997).
32 Id. at 546 (“In summary, we hold that
Florida Rule of Professional Conduct 4-4.2 .
. . neither contemplates nor prohibits an attorney’s ex parte communications with former
employees of a defendant-employer.”). For a
thorough discussion of the issue, see Bernard
H. Dempsey, Jr., New Developments in the Law:
Ex Parte Communications with Current and
Former Employees of a Corporate Defendant,
71 Fla. B.J. 10 (Dec. 1997).
33 632 So. 2d at 1383.
34 See, e.g., Connolly Data Systems, 114 F.R.D.
at 93-95.
35 Id.
36 See First Union Nat’l Bank v. Turney, 824
So. 2d 172, 185 (Fla. 1st DCA 2001) (“The
privilege came into existence-and has been
protected assiduously since-to serve these
important purposes by encouraging clients to
disclose their circumstances fully to lawyers
whose assistance they seek in ascertaining
their legal rights and obligations.”); American
Tobacco, 697 So. 2d at 1252 (“The attorneyclient privilege is the oldest confidential communications privilege known in the common
law. It is therefore not only an interest long
recognized by society but also one traditionally
deemed worthy of maximum legal protection.”)
(internal citations omitted)
37 See, e.g., Globe Communications Corp. v.
Ronan, 648 So. 2d 1199 (Fla. 4th DCA 1995).
38 See Wuchenich, 2000 WL 1769577, at *2
(noting that because “the Supreme Court of
Virginia recently cited Upjohn with approval...
the court finds it reasonably likely that that
court would concur with the Fourth Circuit’s
application of Upjohn to former employees.”)
39 Ehrhardt, supra note 12, § 502.3 at 380 n.4
(2012 ed.)
40 Visual Scene, Inc. v. Pilkington Bros., PLC.,
508 So. 2d 437, 440 (Fla. 4th DCA 1987).
41 Id.
42 See, e.g., Barrett Industrial Trucks, 129
F.R.D. at 517-18 (“[T]he fact that [the former
employee] lost his position at [the corporate
client] indicates that his interests and those of
the corporation indeed may not be sufficiently
aligned to consider him the ‘client’ for purposes
of the attorney-client privilege.”).
43 632 So. 2d at 1383.
44 Carole Basri and Mary Mack, eDiscovery
for Corporate Counsel § 5:6 (2011 ed.) (warning that “communications between a corporate
party’s counsel and a former employee made
in connection with preparation for the former
employee’s deposition or during the former
employee’s deposition are not necessarily
privileged”).
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