Benefits & ERISA Law

Percentage Players Die Broke Too

I have always wanted to write another blog about trial tactics and litigation strategy, and call it Percentage Players Die Broke Too, after the famous line by Paul Newman in the world's finest film, The Hustler (that's the first one, mind you, not the embarrassing sequel they did with Tom Cruise many decades later). For now, though, I am going to settle on adding a new subheading to the digressions section of this blog, titled 'Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics.'

And the very first entry in that section is a link to this excellent post here, by North Carolina business litigator Mack Sperling, about upcoming changes to the federal rules that are intended to end one of my favorite pieces of federal court gamesmanship, the discovery of communications between experts and the lawyers who retain them, as well as of draft versions of expert reports. For awhile there, before everyone caught on, you could get ahold of such material, which could often be of great help in impeaching an opposing expert, simply because opposing lawyers mistakenly believed that they could engage in such communications and have drafts of reports revised under the cloak of privilege. They could not do so, in fact, and nothing was more fun that seeing the face of opposing counsel when they learned this.

In truth, over the last few years, it has become rarer and rarer to find opposing counsel who walked into this trap, and it was more a question of whether a particular expert prepared drafts that contradicted his or her final report without realizing the earlier draft might be discoverable.

Nonetheless, as the author points out, those days are gone forever. I should just let them go.

Full post as published by Boston ERISA Law Blog on November 04, 2010 (boomark / email).