How we plan and manage cases and caseloads using the GTD workflow method.
Detailed Knowledge Is Mandatory
Every lawyer and LSS is required to know this Procedure intimately from top to bottom, and to continuously demonstrate familiarity with all that it contains. You must use discipline and attention to detail to ensure that you adhere to all of the comprehensive requirements set forth below.
Before offering you a position, we informed you that working here would be very different from working in any other law firm. The fact that all Firm personnel must follow this Procedure to the letter is a major reason why this is true.
Despite our pre-hiring disclaimers, professionals with experience sometimes join the Firm thinking that their old skills and habits will be sufficient and that this job will be essentially the same as their last one—which is not true. In training new personnel of all levels of experience, our first task is to replace many old habits and to disabuse them of the idea that they already know how we expect legal matters to be handled. Our unique standards and practices are the key to our success—which we measure by the results we obtain.
Do not succumb to the temptation to merely skim this material for major concepts, or to read it once and consider this piece of work done. You cannot get by with only a superficial understanding of this material. Knowing the “big picture” will be insufficient; you must master the details. We all have lots of work to do, but if you don’t master this material then you simply will not know exactly what that work is, or how we expect you to do it. You will be caught off guard when you discover that you have sabotaged yourself by glossing over the contents of this Procedure.
Learning all that is contained below is a major achievement, as well as a minimum job requirement. This is a lengthy document, and what it contains is more valuable to your progress as an elite litigator than all you learned to pass the bar examination. No lawyer has ever failed to significantly improve their litigation ability and results in cases by faithfully adhering to all of what this Procedure requires. With these tools and the discipline to utilize them, you will also experience greater pleasure in working as a litigator, with a commensurate reduction in your stress level, because you will avoid many of the situations that cause stress. Your confidence, creativity, credibility and standing in the legal community will increase substantially. That is a promise.
Case Planning Is An Essential Skill
Who controls the manner in which your cases unfold and develop? Your opponent, your judge and your jury each hold varying degrees of power, but if you relinquish your vast power to them (which happens automatically when you cease to operate proactively), then you will just be along for what could be a very rough ride.
Some judges and lawyers say that attorneys overestimate how important they are to the outcome of a case. What these so-called “authorities” overlook is that, while the package of evidence received by jurors results in verdicts that seem to bypass lame courtroom theatrics, the fundamental makeup of the information judges and jurors receive is the direct product of lawyer skill. Improperly trained lawyers are often tempted to surrender to fatalistic notions, immersing themselves in the comfortable but completely erroneous belief that their lack of skill and diligence will not affect the outcomes of their cases. It has been proven again and again that in the American system of justice, lawyer skill remains a predominant factor in the outcome of a case.
Excellent lawyers win more cases. They obtain better settlements. Preparation is the hallmarks of a great litigator, and skillful case planning is the key to effective preparation.
To use a simple analogy, skillful and disciplined case planning is the process that transforms your handling of a lawsuit from riding as a helpless passenger on a rollercoaster into skillfully driving a Formula One race car. It will keep you in a position of maxim control, operating as an elite professional at the top of your game.
Case planning is functionally more important than other core litigation skills.
Core litigation skills—such as legal analysis, research, writing, taking and defending depositions, verbal communication, investigation, client development and the ability to digest large volumes of information—are all essential, but none of these is a substitute for skillful case planning. Indeed, with poor case planning those other skills are likely to produce less than stellar results, despite how important they are in their own right.
The best litigators are masters at the art of case planning, which requires intelligence, foresight, discipline, creativity and, above all, attention to detail. Attorneys who are weak at case planning tend to be weak as litigators regardless of what other skills they may possess.
It is shocking that case planning is not taught in law school, but not to worry—it is taught here.
Professional case planning requires an attitude of diligence, vigilance and conscientiousness.
The bedrock ingredients of skillful case management are: (a) attention to detail; (b) the ability to predict what will be necessary to have completed when deadlines arrive, and at trial; (c) close engagement with the client; (d) a system to keep track of tasks, case information, deadlines, appointments and documents (such as Daylite); and (e) a procedural method to ensure that you do the right things, in the right way, and at the proper times. This last item, item (e), is what we refer to as case planning. It is the central component of our case management process. Without it, you will miss valuable opportunities to advance your client’s cause, and you may actually do harm to your client by allowing your work to fall below the standard of care governing our professional services.
Poor case planning is the leading cause of “job hopping” in the litigation world.
It is ever so tempting to take the easiest path through a lawsuit, and a surprising number of lawyers do just that! Why is this so? Depending upon the person in question, there are three typical reasons: (1) the lawyer is lazy or indolent, and puts off work unless an urgent situation arises, in which case he will do the bare minimum to “put out the fire” before returning to his comfortably numb existence; (2) the lawyer has never been trained in detailed and systematic case planning, and simply doesn’t know any better; and (3) the lawyer has too many cases.
Lawyers who are lazy and undisciplined, improperly trained or overworked tend to react to one emergency after another, without thinking much about the whole collection of tasks to be performed in a case and whether their to-do list is complete and appropriate for the case at hand. Their lives are fraught with stress and disappointment because they rarely obtain successful results, and feel that no one respects them; in the face of a growing list of client complaints and poor performance reviews, they tell themselves that they are under-appreciated. After a year or two at a new job, their mistakes begin to pile up to such a degree that getting fired begins to loom as a distinct possibility, so they start sending out resumes. They get a new job, and the cycle re-starts itself.
Lawyers who are simply overworked, but who are skilled case planners, present a different problem, and thus require a different solution. We have a Policy designed to address this problem entitled The Optimum Caseload, as well as a related training video from our “Stress Management For Litigators” series entitled The Ideal Caseload.
Overview & Introduction: What You Will Learn To Do
So now it is time to delve into just exactly what case planning involves, and how to do it well. Let us begin with a highly simplified summary of what you will learn to do. While there is a large amount of detail provided here, the overarching concept of case planning can be stated simply:
Case Planning is accomplished by carefully considering your strategic and tactical objectives, developing a Theory of the Case, then mapping out the goals for each of the six case stages and formulating well thought-out lists of tasks in order to achieve those goals. The tasks are entered into Daylite, then executed systematically and well. Throughout the process, you will continually revise your task lists and keep track of which tasks are complete and which are yet to be completed, as well as when you plan to complete them. You will use these task lists to aid in your reporting to your client and developing litigation budgets. In order to guide you through this process, you will consider in detail how your evidence and legal arguments will be presented, and the measures that must be taken in advance to optimize your presentation, ensuring that those measures are taken in a timely manner.
In order to assist you in your assimilation of the information below, it is helpful to have a map that will give you the “30,000 foot view” of what to expect. The diagram below shows you how the primary facets of case planning begin with strategic planning, which leads to tactical task planning. Tactical task planning is the listing of tasks that should be performed in a case, and when they must be performed in relationship to other tasks and various goals. For example, it is necessary to file Initial Disclosures before serving written discovery or taking depositions. Knowing what steps you must perform in order to complete your Initial Disclosures is essential.
What you see above is basically a cycle of action, which begins with a rigorous analysis of the evidence that is, or may be, available in your case if you dig for it, understanding the substantive and procedural rules of law that apply to your case, and then developing a framework for your trial presentation that evolves over time (Step 1). Next, you begin to list the tasks that must be completed during each of the six stages of case planning, starting with our pre-written checklists which are embedded as “Pipeline” stages in Daylite, then modifying and adding to them to suit the needs of your case. (Step 2). With Steps 1 and 2 completed for the first time (as these are subject to continuous revision), you report your tasks and plans to the client, noting the purpose of each step, getting approval for all your steps, and developing budgets (Step 3). As you work through your task lists (Step 4), you will continue to revise your task lists as your are completing tasks as you work your way through the case. (Step 5) Throughout all of this, you must never lose sight of the exigencies of trial and how you will get your evidence admitted at trial so that you will not face undue interference from the judge or your opponent based upon blown deadlines, lack of foundation or other admissibility problems. You will work backward from an imaginary ideal trial presentation and find ways to make it happen.
How You Input Tasks Is Important
When you enter a task in Daylite, which is the only place you will keep track of your to-do items, you must be sure to link the task to the matter. You must establish a sensible internal due date so that the tasks that must be accomplished first are handled in the proper sequence. You should link necessary items to complete the task so that you can save time later by not having to search for the documents you will need. You can insert further details, contacts, web-links and SharePoint document links to tasks so that all you have to do is click on them in order to start performing your tasks.
The words you use in a task description are very important, because when you see the task it should compel specific action. The more specific, the better. Well-worded task descriptions make it obvious what you should do and should not present you with the need to puzzle out how you will perform a given task. This will make the process of hammering through your task list much, much easier.
Example: Initial Disclosures.Which would you rather see on your to-do list? A single task that says, “Serve Initial Disclosures,” or a series of sub-tasks such as the following in order to meet the Initial Disclosure deadline:
Jones—Verify calendared deadline for Initial Disclosures
Jones—Issue litigation hold notice to client
Jones—Issue correspondence to client explaining the Initial Disclosure requirement
Jones—Schedule call with client representatives to discuss available documents and known witnesses Jones—Send client link to Client Upload Dropbox (SharePoint)
Jones—Review all client documents for content privilege, relevancy & responsiveness (per Procedure) Jones—Interview Albert Brecht (facts, witnesses, documents)
Jones—Interview Dave Thomas (facts, witnesses, documents)
Jones—Interview Mark Jensen (facts, witnesses, documents)
Jones—Interview Arthur Beeman (facts, witnesses, documents)
Jones—Interview Det. James Carter
Jones—Prepare itemization of damages on counterclaims
Jones—Request certified copy of insurance policy from Chubb
Jones—Request financial records from client’s accountant, Mark Allen
Jones—Search for Internet records relating to the plaintiff (social media, treatises, court records)
Jones—Request accident report and transcript of 911 call
The GTD System.
You have probably been hearing about “GTD,” which is the method we employ to manage workflow. GTD stands for Getting Things Done, based on a book by David Allen entitled Getting Things Done: The Art of Stress Free Productivity. Allen’s GTD method has become immensely popular among executives and professionals who must manage a heavy workload consisting of numerous and complex tasks. In addition to being able to download the entire book by clicking the link above, this website contains several procedures and practice guides that explain, or at least make reference to, the GTD method. Because GTD is the core of our case planning process, it is necessary for you to have at least a basic understanding of it before moving on to the rest this Procedure. In addition to what is written below, the following three excellent videos by David Allen will provide you with an excellent understanding (and you’ll likely find them entertaining):
GTD: Free your mind and do your work.
The central tenet of GTD is to get all the “stuff” you have to do out of your head so that you can focus on what you are actually doing, comfortable in the knowledge that it is the thing you should be working on right now. That way, you can give it your individed attention and remain fully engaged in your actual work. “The mind was made for having ideas, but not for keeping track of them,” says Allen. The Firm uses Daylite as the core of its GTD process because it was designed by Marketcircle for exactly that. In fact, for the first several years after Daylite was released (versions 1 through 4), Marketcircle featured a picture of David Allen on home page of its website.
At its heart, the GTD system operates as a funnel, taking all of your incoming “stuff” and processing it. The way this is done is to collect all your tasks, ideas and reminders into a small number of “inboxes” (such as email, voice mail, a stack of notes, letters and forms) and process your way through each with the following system.
You have many sources of incoming “stuff,” which are shown in the grey box at the top of the chart. You receive phone calls, during which you make promises to do things. You jot those promises down as they are made, so that you do not forget them, either on a pad, sticky note or your OneNote case notebook. The same thing happens in meetings, as well as when you have ideas. The product of this is that you have notes, voice mail messages (which are automatically forwarded to your email if they are on our GoTo phone system) and email to process. You may even have some paper mail. You take each of these and process them one at a time, as follows. You first ask yourself, “What is it?” Then you ask yourself, “Is it actionable?”
If the item is not immediately actionable, you may want to save it as a task with “someday” as a due date so that it can incubate over time in your mind. (There is a “someday” due date option in Daylite.) Or you may want to save it, as when you archive an email with no task associated with it. You may want to keep it as a reference, so you store it in SharePoint or your OneDrive cloud storage. Often you will simply want to trash it.
If the item is actionable—meaning that there is something you need to do about it or with it, you ask yourself, “What is the next action?” This is where the magic starts. Taking the time to define the next action with precision is the key to entering tasks correctly. Next, you ask yourself, “Can this be done in less than two minutes or less?” If so, you do it right then. This is known as the Two Minute Rule.
Through the steps discussed so far, you get rid of all of the items that clutter your inbox and your mind as quickly as possible, without procrastination.
Then we come to those items that represent subparts of a bigger project—a case. If the task to be performed as a stand-alone item, such as researching a specific legal issue or reading a lengthy document, you may wish to simply create a task in Daylite. If it is an email that will take more than two minutes to answer, you may wish to make that email a task in Daylite by using the Daylite Mail Assistant, but be sure to change the description of the task from the subject of the email into words that compel specific action, such as “Respond to Bob’s email about settlement value.” The original email will be automatically linked to the task, and you can adjust the other task fields as appropriate without leaving your Apple mail application.
On the other hand, if the task is related to other tasks, particularly in the context of the overall case management process, then you must engage in some case planning when you enter that task and the other tasks that will be related to it, using the methods described below.
In this manner, every item of “stuff” that you process ends up on one of four possible places: Daylite, email archive, document archive or trash. The key is to process them one at a time. For each actionable item posted to Daylite, ask yourself: “Is this a task or an event?” and enter it accordingly. Set appropriate reminders so that it won’t sneak up on you. Then ask, “Am I the right person to do this?” If not, delegate the item using the “Delegate” option for tasks and appointments in Daylite.
Then you take off your GTD/Daylite processing and planning hat, and put on your worker-bee hat and start performing tasks.
Consider the effect.
When you consider all of the things that you need to do in all of your cases without an external system to assist you, your mind will become a garbage can full of conflicting priorities. You will save yourself the time and energy of processing and organizing your work, but you will stagger through your workload uncertainly, worried about dropping balls and doing exactly that—dropping balls. Just as you settle in to work on a task, you will become distracted by the nagging fear that you really should be working on something else. You will constantly interrupt your own work, and may find yourself flitting back and forth between tasks with the attention span of a cocker spaniel. You will find that some very important tasks keep being pushed back until they put a knot in your stomach.
This is one of the main causes of procrastination. The notion that we can “multitask” is a myth. No one can perform at their best when trying to do more than one thing at a time. Trying to multitask is merely a romantic name for being unable to stay focused on what you should be doing, because you are trying to keep track of everything you must do by storing it in your head. When you multitask, nothing you do receives your full attention. “But I give all of it my full attention,” you might say. Simply put, that is a fantasy.Prove it to yourself: try to have a meaningful conversation with someone who is trying to process their email on their phone. The other person will think it is working, but you will know it is not. Now add this to the equation: having a simple conversation is not nearly as demanding as performing complex legal tasks.
Divided attention kills performance. Getting into the habit of trying to multitask actually shortens your attention span and leads to errors. It is both frustrating and extremely tiring. People tell themselves that they can multitask or “fly by the seat of their pants” because they simply have too much to do, or have fallen behind in their work. With multiple deadlines rapidly approaching, they begin to panic and dash through things that should be done with care.
We occasionally hear lawyers say, “I know what I’m supposed to do and what’s most important. I don’t need to waste my time with make-work assignments such as keeping track of tasks and deadlines in a computerized database.” Such lawyers are intimidated at first by what they think will be an arduous process that will slow them down. They believe that doing work is more important than thinking about it. These are understandable reactions, but they are dead wrong. Imagine driving from Denver to Tulsa under time pressure, and deciding that you have no time to stop for fuel. Sure, stopping for fuel seems to slow you down, but it actually speeds you up. Running out of gas in a car and missing key tasks in a case are very similar events in that they both spring from a lack of foresight. The short-sighted easy way is almost always a bad way.
Proven and documented fact. Decades of experience has taught us that lawyers who do not employ a system such as GTD to manage their workflow find themselves on the courthouse steps woefully unprepared. They tend to complete less than 50% of what they should have by the time it is too late. Without careful planning, they don’t even think of most of what they need to do to meet a deadline or win a case, and without devoted adherence to the monitoring and upkeep of their workflow system, they don’t even know where they stand. The time it takes to do thorough and detailed case planning with the GTD method in Daylite will pay for itself ten times over as you progress through a case.
Human memory is fallible. How would you feel if you were riding on an airplane and you found out that the pilot didn’t bother to refer to the checklists that come with the aircraft? Would you be afraid that he might miss something? In our video on Attention to Detail, we cite an example of a crash during takeoff in which dozens were killed because the pilot forgot to extend the flaps before commencing his takeoff—an item that is on the checklist. This is why the FAA requires pilots to formally refer to their checklists for every phase of flight, regardless of how well the pilots think they know them.
Why can’t I use my own system?It is common for the Firm to hire experienced lawyers, many of whom have developed systems of their own. Some use spreadsheets. Others use handwritten lists. Still others use sticky notes. Some use a computerized calendering and task-tracking system which does not integrate with our system. Most of them are reluctant to move away from that with which they are familiar, and are reluctant to completely re-tool their approach to case management, so they ask, “Why can’t I use my own system?”
We have found that whether a lawyer can rapidly adapt to our software, systems and methods is diagnostic of how well they will fit into the firm in other ways. Lawyers who are reluctant to integrate with our team, either socially or technologically, almost never work out here because their professional goals do not align with ours. As an aside, they tend to be job-hoppers because their “outsider” mentality chronically deprives them of the ability to integrate with this or any other team.
We do not permit lawyers or support staff to run their own private systems because: (a) their systems lack the robust nature of our GTD/Daylite system and the benefits that following this Procedure will provide; (b) we have yet to see any lawyer using some other system perform as effectively as those who follow Firm Procedures, because they have not invested even a fraction of the time and effort developing their systems as we have; (c) we can’t keep track of what they are doing, which is essential to Firm management; (d) lawyers who can’t adapt to our systems tend to be uncooperative in other areas and cause problems for our team with their “outsider” mentality; (e) we are a law firm, not an office-sharing complex; (i) lawyers who cannot adapt to new ways lack the flexibility needed to reach the top of this profession; (j) lawyers who quickly learn, and abide by our systems tend to be able to learn a lot of new things, which is a minimum job requirement; and (k) it is not difficult lawyers who are willing to cooperate.
The value of a well-organized task list.
Scroll back up and look once again at the list of sub-tasks that will make filing Initial Disclosures in the Jones case easier to accomplish. What if you had a checklist like that one to follow every time you prepared Initial Disclosures in a case? Note that the description of a task must compel action through clearly stated actions. There is no “figuring out” what each task requires. It is obvious that the steps to prepare Initial Disclosures, when stated with such specificity, will vary from case to case. If you skip important steps, your Initial Disclosures will be insufficient, which could cause great trouble down the road in the form of expensive and stressful motions practice—or it could quite literally cost you the case. Below, this Procedure offers many pre-built checklists to assist in each stage of your case planning, but generic checklists, while extremely valuable, do not anticipate all that must be done in a given matter. Take for example the separately-listed tasks related to witness interviews in the example above. If you had entered a single task that simply said, “Jones—Intwerview all witnesses,” you would be lost in the vagueness of it because it doesn’t tell you specifically what to do.
Imagine if you spent 90% of your productive hours working from a task list that listed items by due dates and level of importance. How easy your life would be! Now imagine if you spent 10% of your productive hours building and maintaining those task lists on a case-by-case basis.
Goals, deadlines and appointments are not tasks.
A goal is an objective, a thing to be achieved, but by itself it is not a task. For example, you may have the goal of “winning the case,” and it will seem like a giant task to do so, but it will require hundreds of completed tasks just to give you a fighting chance. Breaking your tasks down to clearly stated individual action items will keep you on the road to winning the case. You may have “completing discovery” as a goal, but that would be useless to list as a task. Rather, you input the deadline—the discovery cutoff—as an appointment (event) in Daylight; then input the separate tasks that are needed to reach this goal, such as, “Respond to plaintiff’s interrogatories,” “Depose Jackie Dawson,” “Draft second set of interrogatories” and “File motion to compel.” When you have completed all of those tasks you have achieved the goal of completing discovery prior to the discovery cutoff.
A deadline is a date, an event, and we list it in Daylite as a day-long appointment. You may need to complete many tasks in order to meet a deadline, and when you add those tasks to Daylite you must establish sensible “internal” due dates for each task so that Daylite can sequence those tasks for you, then you complete your tasks in a logical order. Your calendar is not your task list.
Similarly, an appointment is an event, not a task. It has a date, time and place where you must do other work. You may list the steps necessary to prepare for the appointment as individual tasks, and you will obviously enter a due date (sometimes referred to as an “internal” deadline) for each of those tasks that is earlier than the appointment. When you enter an appointment in Daylite, you must link it to the matter so that you can see all of the appointments and deadlines in a case in a single view.
Note also that you can also link many other items to a task, such as one or more contacts, documents and web-links. You can also add notes to tasks, deadlines and appointments. When you see your next task on your list and to it are linked the key items you will need to have at hand when you perform the task, it makes doing the task much easier. Example: a task reads, “Read the Association’s By-Laws,” and the link to the 90-page document is linked to the task. You simply click it and download the document, annotate it in Acrobat or Preview, and then upload it into the “Working Copies” library. Then you check the task off as DONE, and bill for it. Then go to the next task on your list.
Your life can—and must—be as beautifully organized as what is described above. We accept nothing less.
Daylite pipelines and activity sets.
Below you will find separate checklists for each of the stages of a case. Within Daylite, we have created Pipelines, which are automated stages used in Daylite to assign groups of tasks to users. For more information about pipelines and other Daylite training, click here. Pipelines automatically assign all of these checklist tasks for each stage of the case to the Principally Responsible Attorney (PRA). An early Stage 1 task is for the PRA to modify the task list after assigning the Case Management Pipeline to a matter.
Total reliance on the pre-built Daylite pipeline tasks is not acceptable, for the pipelines are not intended to constitute a replacement for active, careful and timely case planning. More importantly, the pipeline does not provide the extensive knowledge you must absorb from a careful review of this policy.
One of the most important aspects of early adjustment and tailoring of the automated Case Management Pipeline tasks is to carefully review the due dates that are set as standard in most of the Stage 1-3 tasks, and to link the tasks to the deadlines that are imposed by the Rules of Civil Procedure and court orders. In that way, case planning is made easier because it is then possible to spot, in an isolated fashion, all of the tasks that have been recorded to meet a particular deadline, and to ensure that the internally set due dates are proper and logical in light of the actual deadlines.
As explained above, a deadline appears as an all day event in the Daylite calendar. Internally set due dates for tasks that must be performed before the deadline passes (which should be linked to the deadline) should never be the same as date of the deadline, but should be set far enough in advance of the deadline to leave a margin for error.
This one feature of our firm technology is likely to reduce by 90 percent or more the likelihood that key measures will not be performed in a timely manner. Further, by automating a significant portion of case management, we have freed your mind to perform more advanced case management and planning, while at the same time stimulating thought along lines that are sometimes forgotten.
The process of case planning is iterative, meaning that it consists of several steps that are repeated in a cyclical fashion. As you cycle through the steps on your way to trial, you are in a race with your opponent to see who can do the best job of completely packaging a case so that you and your case are both truly ready for trial.
You should be reviewing your task lists at least weekly. Doing so will ensure that you check off as “done” those tasks that have been completed (a pleasant experience), that you have billed for all of them, that you think of new tasks that did not occur to you at an earlier time, and that you can return to one-task-at-a-time work with total comfort that your date-sequenced task list is complete and correctly designed. As mentioned above, this process generally takes no more than 10% of your productive time.
You should spend 10% of your time wearing your “GTD/Daylite hat” and 90% wearing your “worker bee hat.” Never try to wear both hats at the same time, even though you might stop working on a task long enough to add new tasks to Daylite as they occur to you while doing other work or as a result of an interruption. When you do this with discipline, your stress level will drop significantly, and your opponent’s stress level will skyrocket as he realizes that he can’t keep up with you.
Theory of the Case
The trick to successful case planning is to always operate with a Theory of the Case as your central guiding concept. We refer to it as the “TOC”—a term in constant use here. This Procedure will teach you how to formulate optimum TOCs. The definition of a TOC is: a plan for how to develop and present your client’s case in a way that will maximize favorable decisions by judges and juries. Developing a TOC involves a principle known as psychodynamic integration, which is the process of resonating with others through communication (visual, written and auditory), in a manner that brings them to adopt your proffered realities, viewpoints and position. Psychodynamic integration is a core concept in the art and science of persuasion as it is taught in the Firm.
The TOC will serve as your primary means of planning your actions and making decisions throughout the lifespan of a case. It will, of course, change over time as you learn new facts and complete legal research. There are key steps to be performed in order to ensure that you have every opportunity to refine and perfect your TOC as early in a case as possible, though on occasion late-breaking developments may require you to change your TOC shortly before—or even during—the trial of your case.
Below are links to useful articles on Theory of the Case, which will supplement what you learn studying this Procedure:
You should begin to develop a Theory of the Case (TOC) at very outset of a case, and carefully refine it as your file documentation and your understanding of the case expand and develop. Your TOC is your basic battle strategy, your “North Star,” your means of navigation and your plan for victory. It is the wellspring of most of the tactics you employ, for your actions should be dictated by your own plans rather than the opponent’s actions. It is what guides you when decisions must be made quickly or under pressure. It is what puts your client’s mind at ease from the beginning. It is what gives you a sense of purpose and confidence which courts respect and opponents fear. It is what keeps you on track as you move through the case.
The Fallacy of Sage Restraint: Some lawyers claim to be so cautious and careful that they hold off on forming “premature” conclusions or plans until they “have all the facts.” Some have mastered the theatre of appearing sage and wise in taking such an approach. Simply put: these lawyers are imbeciles; foolish and lazy; such phony scholars depend upon play-acting to camouflage their failure to think and work with the information they have available. You may, from time to time, seek to lull your opponent into a false sense of security by appearing as if you were approaching your case in this manner, but do not ever actually fall prey to the lure of this justification for inaction.
Your TOC will change—sometimes drastically—as the case develops, but you still must always have a working theory nonetheless. Reminding your client that your current theories and plans are subject to constant re-evaluation in the dynamic environment of litigation is wise. Remaining flexible is essential, but failing to plan is never excusable, so don’t be tempted to think that reserving judgment until all the facts are in is anything other than an excuse for being docile and inert, which are deadly flaws in a litigator. There is a fundamental principle of warfare (and make no mistake, litigation is a form of civilized warfare) which states: “The warrior who acts with purpose and who controls of the course of the battle will prevail over inactive, immobile or unprepared foes.” This is simply another way of describing the initiator’s advantage.
When a lawyer is empowered by a well-designed TOC, he or she can make optimum decisions and identify and execute effective measures to improve their chance of success. Further, thus empowered, an attorney can add additional important tasks to the tasklist in a case which supplement these checklists.
Most clients know when lawyers have well thought-out plans, as well when they are merely faking the appearance of skill and wisdom. Lawyers operating on skillfully devised TOCs are much better able to communicate with clients, and do not leave them wondering what is transpiring and why.
We provide less experienced personnel with the benefit of supervision by attorneys with extensive training in our litigation methods. We seek to prevent case supervision from becoming a full-time job for a supervising lawyer or creating financially wasteful redundancies. In our firm, a supervising attorney is sometimes referred to as a “Q,” which is a nickname that evolved over time to reflect a supervisor’s Quality Control function, as shown in the Division 5 (Qualification) section of our Organizing Board.
It is the responsibility of the Principally Responsible Attorney (abbreviated PRA)—the lawyer responsible for the day-to-day handling of a case, who is listed as the “owner” of a case in Daylite—to ensure that all cases are planned carefully in accordance with this Procedure, and that all tasks are performed well and in a timely manner.Lack of input from a supervisor is no excuse when the requirements contained here are not followed.
In addition to the steps outlined here, status reports should be transmitted continuously to clients. The case planning steps covered in this Procedure will assist in drafting those reports, and in formulating budgets that many clients require. Reporting is an action that is separate from, but heavily dependent upon, skillful case planning. A few of the key junctures at which status reports are mandatory are mentioned below and in other Policies and Procedures, but it is essential to remember that reporting is an ongoing obligation that exists separately from case planning. Our general rule regarding status reports is to write a report every time something important happens in a case, and to set repeating reminders in Daylite to ensure that you think about writing update reports to clients at least every three weeks. For more on the subject of status reports, please review our Practice Guide entitled Status Reports.
Note: If you think of common tasks that are not listed here but should be, please let us know so that we can continue to improve this Procedure.
If you are unsure of the meaning of any term, phrase, task or process mentioned in this material, you must assume that it is important and get help. Failure to understand invariably leads to failure to act, which invariably leads to bad results and bad outcomes.
Strategy And Tactics
Lawyers must think both strategically and tactically. Many lawyers do not understand the difference between these two things, or how the interplay between them drives and informs effective case management. Gaining a full conceptual understanding of these fundamentals is more than just a philosophical exercise—it is the first step to understanding how to formulate brilliant TOCs. When your knowledge is firmly grounded in comprehension of these fundamentals, your ability to apply the principles and specific methods set forth here will be greatly enhanced.
Strategy: what is the goal? Tactics: how will that goal be achieved?
In broad terms, strategy refers to determining what should be accomplished, while tactics are the means by which it will be done. Strategic thinking begets tactical planning and execution. A more specific way of stating this relationship is that analysis leads to synthesis, which leads to development, which leads to action, as depicted in a diagram below.
Strategic planning is a broader and more generalized process than tactical planning and execution, and indeed encompases tactical planning as a subpart of its anatomy. Strategic planning, completed in the absence of tactical planning, leads to little more than abstract goal setting. Goals alone fail to produce workable results.
The fruit of these efforts must be a series of brilliantly conceived and skillfully executed steps, completed in the proper order and on time, so that your chances of winning your case are absolutely maximized.
Defining what “win” means.
There exists a tension between two principles that often leads to confusion and stress. These opposing principles are:
Establish goals that are realistic and attainable, otherwise you set yourself up for failure; and
You can achieve much better results if you set fantastic goals, far above what on first blush you assume to be possible.
The way to reconcile these two ideas is to recognize that they are both true. Your job as a litigator is to optimize the outcome, reaching a level of success that may at one time have seemed to be impossible. Setting impossible goals is silly, but assuming that something is impossible, without first evaluating all potential means of achieving that outcome, is an insidious form of self-sabotage. Finding ways to achieve goals that appear to be impossible—but are not—is the art of gifted lawyers. Being ‘realistic’ means knowing all there is to know about your own preconceptions, unwarranted assumptions, fears and self-imposed limitations, and how these personal traits interfere with your performance. You can prevent them from interference from interfering with your level of performance.
Through deep knowledge of law and legal tactics, human nature, and the specialized aspects of the fields of expertise that are involved in your case, you can find solutions that evade casual inspection. Information is useless if it can’t be applied. So, how do you actually apply the principle that analysis drives synthesis, which drives development, which drives action?
The Anatomy of Strategic Litigation Planning
The diagram below maps exactly how strategy drives tactics. It must be studied thoroughly and with care so that you know how to think through your strategy before planning your tactical steps:
Strategy drives tactics
As you study the above diagram, you will come to some realizations that will help you understand exactly how our tactical planning fits within the broader overall context of our strategic thinking–not just abstractly, but in real and concrete specific ways. Note where Case ‘Planning In Stages’ fits within the overarching scheme strategic planning.
Case Planning Stages
The core of our systematic approach to case planning is the manner in which we divide the life of a case into six separate stages, assigning basic priorities to each. Every stage has a set of overall goals, which are facilitated by continuously evolving checklists for each stage. The checklists are merely a starting point for a lawyer’s thought process and planning for each stage. Not all of the items on the checklist for each stage will apply to a particular case; the checklists will often not be sufficient by themselves to guide a lawyer’s complete and thorough planning for each stage. The attorney must carefully consider the matter and ask, what else will be needed in this particular case?
There are 6 essential stages of a civil action, as shown below. You may have noticed the stages embedded in the strategic planning diagram above. Each stage builds on the earlier stages to guide the logical, progressive development of a case, from the initial assignment to the trial and potentially through an appeal.
Carefully study this diagram. Remember, you are not only looking for the general concept that these various boxes fit together or relate to one another. Instead, you are trying to acquire a conceptual understanding of the details of how these elements interact. Once you can draw this box from memory (without all the list items under each case stage), you are ready to move into the cornerstone of case planning, which is your Theory of the Case.
* The term discovery in Stage 2 includes the substantial completion of all non-expert written and oral discovery. The term expert designation includes the identification, selection, vetting and hiring of experts, document review by experts, all necessary testing or research, formulation of opinions, completion of reports and all filing of rule-compliant expert designations (also known as expert disclosures).
**Stage 3 combines expert depositions with preliminary trial preparation to prevent the problems caused by the common practice of failing to think in advance and in detail about the trial itself until after discovery is completed, which results in: (a) inadequate planning of expert opinions; (b) admissibility and foundation problems that could have been handled in advance; and (c) omitted discovery, the need for which does not become evident without actual trial planning. By installing the overlap between the end-stage of discovery and the commencement of trial preparation, we establish a corrective interval during which late-realized deficiencies may still be corrected.
Do not fall prey to the temptation to use the Case Planning Stages diagram shown above as a substitute for the detailed information and checklists contained elsewhere in this Procedure, for it is intended only to convey the conceptual structure of case planning in a “bird’s eye view” so that you can more easily understand what follows.
This case anatomy tends to “front-load” work, in the sense that there is a great deal of activity at the very beginning of a case. If that work is done well and on time, the discovery and motions phases become much easier to manage. Moreover, by thoroughly scripting your trial presentation, including your order of proof, at least two months before the discovery cutoff, you gain the ability to correct mistakes and oversights that only become apparent when this kind of trial planning is done. This is the distinctive characteristic of our case planning scheme.
How it all comes together.
It is immensely useful for attorneys and support staff to refer to written procedures and checklists in the process of case planning. Even attorneys with years of experience benefit from the checklists provided below and our other Procedures, which spark new ideas while reducing the possibility of overlooking or forgetting important steps. The checklists below cover many bases, but will never be sufficient in any given case.
Most lawyers have a habit of delaying their actual trial preparation until trial is at hand, typically commencing the process of scheduling witnesses and selecting exhibits, formulating arguments (opening and closing) and figuring out the trial theme less than 30 days before trial. Those lawyers invariably discover that several key tasks should have been performed but were not, and now it is too late to rectify the problem. Foundational evidence has not been identified and disclosed in a timely fashion, expert designations are incompete, admissibility and other evidentiary concerns have been overlooked, and the trial presentation will therefore not be what the attorney wants it to be. This is why the last month before trial is so terribly stressful for most trial lawyers.
Preliminary trial preparation should begin on the day the case comes in the door. Detailed trial preparation should be done before the end of Stage 2.
Detailed trial preparation, which is discussed in greater detail below should consist (at a minimum) of the following:
Order of Proof: Planning the order of witnesses who will testify at trial, what they will cover, and which exhibits they will sponsor into evidence;
Evidentiary Motions: Filing motions in limine and other trial motions;
Arguments:Planning of opening and closing arguments;
Jury Selection: Plainning voir dire;
Jury Instructions:Selection and listing of custom and stock jury instructions;
Trial Briefs: Preparation of trial briefs;
Witnesses: Reminding witnesses of their scheduled trial times and verifying that they are under subpoena;
Planning Direct and Cross:Reviewing depositions and outlines of testimony;
Videos: Editing preservation video testimony;
Filings: Filing final exhibit and witness lists;
Stipulations: Discussing final stipulations (such as authenticity, pre-admission of exhibits and undisputed facts);
Witness Prep: Scheduling time to prepare witnesses to testify at trial and conducting those meetings; and
Mediation: In most cases, trying to jam in a day of mediation.
Waiting until you are a month from trial to do all of these things is a grave errorand causes terrible stress—not only for you but for the rest of our staff. It is a product of laziness and makes your trial very much harder to win. Don’t do it. Start your final trial preparation well before the discovery cutoff, and use the remaining time only to polish and refine your trial presentation during Stage 4. If you do these things, you will glide calmly into the courtroom on the first morning of trial filled with confidence that will be obvious to your judge, your opponent and your jury.
Stage 1: Initial Review
Stage 1 is by far the most important stage of a case. What you do in this phase directly controls how effective you will be during the stages to follow.
Case planning depends above all else on your detailed knowledge of the case. (On this point, see our Policy regarding Reading and Knowledge.) Your key priority in Stage 1 is to rapidly learn the facts of the case, the contents of your files and to immediately initiate, and vigilantly pursue, the swift and thorough acquisition of additional information and documents for analysis. If you are tempted to think that requesting a particular type of data or documentation might be unnecessary, you are probably in error. When it comes to information in litigation, what you don’t know can hurt you, so gather all the information and evidence possible.
Your primary functions during this phase include:
Document collection: Ensure that you have identified and requested all potentially relevant material that can be pursued without formal written discovery, including material from your client and third parties and informal correspondence urging the opposition to produce specific categories of information.
List: Itemize additional information needed and materials that might exist and how to obtain them;
File review: know what is in the file and what is not in the file;
Chronology:Develop a written chronology of events.
Preliminary TOC: Formulate a preliminary Theory of the Case ;
Plan:Carefully map out discovery, disclosures and investigation steps, being specific with task creation in Daylite;
Social media:Internet research and social media checks on parties, witnesses, counsel and the court.
Budgeting:Prepare written budgets for your client and ensure that the client understands what the case will cost to litigate, in writing.
Indemnity tenders:Make and respond to all relevant or potential tenders of a claim for defense and indemnity based upon any potentially relevant contract language.
Early dispositive motions: Give early consideration to, and file as appropriate, motions for summary judgment or to dismiss, or to strike improper claims (such as premature punitive damage claims in Colorado cases). Consider jurisdictional motions, statutes of limitation, cases in which written notice was not given (such as warranty claims, FTCA and CGIA claims, and mandatory arbitration provisions in contracts).
Report: Prepare a highly detailed and well-written initial file analysis report for our clients and their insurers, with the tasks you listed in step 4, above, enumerated and explained;
File timely pleadings:Complaint, answer, counter-claims, cross-claims, third-party claims; designations of non-parties, etc.
Case scheduling:Schedule all deadlines and verify internally set due dates.
Disclose: File well-crafted Initial Disclosures.
Task entry in Daylite keeps you in control.
As mentioned above, deadlines and tasks must be entered in Daylite, with early internal completion deadlines to ensure timely follow-up of all tasks that must be completed before a deadline expires. The tasks must be linked to the deadline to aid in case planning. The more tasks you set at the beginning (assuming they are correctly entered in Daylite with proper follow-through by you), the more likely it is that you will retain control over the case. Attorneys lose control over cases when they fail to maintain the initiator’s advantage , thus finding themselves being forced to react to the opponent’s tactics, often in haste, while losing opportunities. These lost opportunities include: the loss of credibility with courts, as when attorneys are seen as dilatory, evasive or just sloppy; the opportunity to be the first to contact witnesses; the ability to make intelligent choices based upon properly researched legal theories; the ability to warn clients in advance of foreseeable problems, and a host of other items. This troubling phenomena is typically caused by lax or undisciplined practices, which lead to missed deadlines and shortened or lost lead time . The key to preventing this “failure snowball effect” is good Stage 1 planning as manifest by the entry of well thought out steps in Daylite, coupled with timely execution of those tasks.
Lawyers who miss internal or external deadlines are a threat to their clients and the Firm. We will treat them as such in order to protect our clients and the rest of our valuable personnel. If you have difficulties managing deadlines, you are not suited to work in litigation. On the other hand, if you skillfully perform all necessary tasks to meet each of your deadlines, your value to this organization is extremely high, and you will be treated accordingly.
Stage 1 Checklist:
Confirm receipt and acceptance of the legal matter (or prepare engagement letter, as appropriate) after verifying that the conflict check is complete and documented.
Confirm due date for responsive pleading (enter appearance and move for extension if needed).
Develop early case diagrams as needed.
Read all material on the court’s website.
Carefully read all court standing orders and practice standards.
Send out electronic evidence preservation (non-spoliation) notice letters.
Docket all case-at-issue deadlines (those deadlines triggered when the case is “at issue,” such as Initial Disclosures, Certificates of Review, ADR statements, depending upon local rules and standing orders).
Confirm that all Daylite contact and project data has been entered, including file details, contacts information, existing appointments and and known deadlines.
Confirm whether any claim or issue involves a right to attorneys’ fees and inform the client of the results of this research in writing.
Evaluate whether to designate non-parties at fault or file third-party claims.
Request, obtain and promptly and thoroughly review the client’s file materials.
For defense cases, evaluate filing an early motion to dismiss (considering each claim for relief separately, as well as jurisdiction and venue).
Consider choice of law issues, including those related to forum selection and choice of law provisions in contracts, as well as jury demographics and judicial temperament.
List all bases for other potential dispositive motions and consider timing of same.
Make early request for releases from opposing counsel, noting that if this request is not honored, additional third-party subpoenas duces tecum will be needed and the same should be reflected in a motion to modify the Case Management Order, even if over the objection of opposing counsel.
List, and request from opposing counsel (on an early informal basis) a list of all third parties who may have discoverable information, including health care providers, agencies and institutions (such as investigative and regulatory entities, banks, schools and employers).
Request records from entities listed above, including for example: accident, incident or investigative reports from municipal police, 911 (tapes), sheriff, highway patrol, land-owner, employer or other agencies and entities (it may be necessary to set a research task to simply identify these information sources).
Contact and interview the client, the client’s involved employees, and other persons we need to reassure or control.
Visit the client’s company headquarters, accident scene or other central locations.
List, locate and interview all fact witnesses (unless they are represented by counsel).
Perform internet research (Google, social media, etc.): parties, counsel, the event in question and the judge.
Determine whether to file a motion for a cost bond.
Consider and plan needed research, listing topics and setting specific research tasks (common issues are privilege, legal relationships and duties, evidentiary issues and the basic substantive law governing the claims); obtain advance approval for research if client’s litigation management guidelines so require.
Create and organize standard files and working files in accordance with the Firm’s directory structure procedures.
Confirm that statutory notices (for example, as required under C.R.S. § 24-10-109 or C.R.S. § 13-20-602 or other statutes and rules) are timely and that all relevant statutes of limitation have been evaluated.
Draft Initial Disclosures.
Draft thorough, well-thought-out written discovery requests, seeking tax returns, medical releases, healthcare provider lists and all other information you can think to ask for.
Develop a case chronology.
Consider ADR and discuss pros and cons of early mediation with the client.
Draft thorough and well-written Initial Case Analysis report for client or adjuster, including material listed above and steps listed below.
Request claim files from all first- and third-party insurers having any involvement in the matter, including health insurers, medical payment providers, life insurance companies, disability insurance companies, homeowner and auto insurance companies.
Request medical records upon obtaining releases.
Request employment records upon obtaining releases.
Request financial records from banks, brokers and other financial institutions.
Request tax records from IRS and state agencies.
Request missing information the existence of which is noted or hinted at in records obtained to date.
Consider necessary areas of expert testimony, and begin to list candidates in each field.
Prepare Initial Litigation Budget.
Set matter for trial (with consideration of pretrial conference deadlines), and notify all clients, insurers and witnesses in writing of the trial date and your best estimate of when they will be needed to testify.
Request deposition dates for key deponents (factoring in enough lead time to allow for the completion of Stage 1 steps that will be needed before the depositions, but do not wait for those steps to be complete before asking for dates, as the order of requests generally sets the order of depositions and it is better to go first when it comes to taking depositions).
Set follow-up tasks and reminders on all outgoing requests as they are generated.
Set review tasks as all new material is received.
Consider bifurcation of trial and/or discovery, as well as other special trial exigencies (excessive video, etc.)
Consider, and discuss with client, written settlement offer (before costs have begun to accrue significantly).
Stage 2: Discovery, Investigation and Expert Selection
Stage 2 begins soon after the steps discussed above are complete, and certainly no later than the commencement of written and oral discovery. It is essential to maintain momentum and control of the case by skillfully controlling the discovery process from the outset. You should be the first to submit written discovery and the first to request dates to set key depositions (in writing).
Your primary functions during this phase include:
Written discovery:Issue well designed and carefully planned written discovery, as well as responding to and supplementing your own responses to written discovery;
Depositions: The single most powerful tool in a case is often a well-taken deposition, which provides ammunition for use in motions, sets potentially indelible impressions in the mind of the attorneys and parties (and their insurers) regarding the value of a case, and makes the trial more effective by permitting more powerful opening statements and cross examinations.
Early discovery motions: Consider filing motions for protective orders regarding confidential material, motions for protective orders regarding privileged material (in some courts, such as certain Federal courts, a privilege log is not sufficient), motions to compel Initial Disclosures or written discovery.
Follow-up on disclosures: Prompt pursuit of incomplete disclosures and discovery responses from the opponent, using well-drafted correspondence and motions, as well as supplementation of your own earlier disclosures to include newly obtained information;
Follow-up on early written records requests and make new ones.
Preliminary consideration of expert topics: Carefully choosing, hiring (with prior authorization) and endorsing expert witnesses, as well as ensuring that they have adequate materials, testing and time to complete thorough analysis and reports;
Analysis of pretrial motions: Determination of Rule 702 motions and motions in limine while there remains time to perfect the basis of such motions with oral and written discovery;
Inspections, visits and IMEs: Consider visiting scenes of accidents, corporate headquarters, and requesting medical examinations under Rule 35.
Experts: Select, recommend, obtain approval for, get budgets from, get materials for designation, and start experts working.
Research: Complete all legal and factual research needed with respect to all foreseeable legal issues;
Reporting: Draft comprehensive reports to inform the client (and insurer) regarding the timing and status of the case, covering all of the above subjects.
Send out carefully drafted written discovery at your earliest opportunity. Do not simply rely upon stock interrogatories and requests for production. Rather, think carefully about specific and important areas of inquiry and draft your questions carefully. Propound contention interrogatories and requests for admission with negative parallel interrogatories.
Begin setting depositions right away, even if you do not intend to take them right away, because there is a built-in delay between your request for dates and the setting of the deposition, which is followed by yet an additional delay before the deposition can be taken. The depositions you wish to take will often be delayed by scheduling concerns and problems. Some lawyers wait until they are ready to take a deposition—meaning that they have all the written materials they need and have decided how they want to conduct the deposition—before initiating the setting process by announcing an intention to take the deposition and seeking dates for the same in a defined future time frame. These lawyers often run out of time to take depositions and also commonly lose the opportunity to take the lead in questioning. They also lose the ability to control the sequence of depositions, which can have a great impact on the strength of one’s case. So do not wait: start the setting process as soon as reasonably possible.
When you send out requests for deposition dates, set a follow-up task to remind you to ensure that your request was answered timely. If not, issue the notice with correspondence relating to the failure of the opposition to cooperate in setting dates and your effort to secure compliance. Be willing (and potentially offer) to move depositions if opponent begins to cooperate.
Responding to written discovery.
Do not put yourself and your client at a disadvantage by failing to timely meet your discovery obligations (including properly detailed privilege logs).
Never fail to respond within 30 days to Requests for Admissions, for if you do, the requests will be deemed admitted.
Confirm written follow-up on all initial requests listed above (and any others you have initiated). Similarly, do not let the opponent get away with anything less than full compliance with his or her discovery obligations. Keep the pressure on the opponent and off yourself by thoroughly complying with your obligations and making sure your opponent does the same. Neither be rude nor easygoing, for both are marks of an amateur litigator.
Immediately upon receipt of written discovery, you must send the same to our client, along with a cover letter explaining what the client needs to do to assist you in responding. Never just send the questions without detailed instructions of what the client must provide, and when, along with freindly assurances that you will raise the proper objections. Provide clear, concise and specific information to the client regarding the need to fully respond and what is (and is not) privileged, and explain that anything that is withheld under a claim of privilege must be listed with specificity in a log, due at the same time as the responses, or the privilege will be waived. Explain that responding to questions regarding legal contentions and making objections are your job, and that you do not require the client’s assistance on those portions of the responses. Explain further that court rules specify that locating and producing data and documents will require diligent and thorough effort by the client, and that you will assist in the compilation of those materials, but that you are utterly reliant on the client to locate them and give them to you. Explain, in the friendliest terms possible, what can happen if required information is not produced on time, including the possibility of severe court sanctions such as fines, striking claims and default.
Never pander to a client’s desire to minimize the effort involved in responding to discovery (or the client’s disdain for the process or the opposition) by fostering an attitude that leads to less than full compliance with our legal obligations, for doing so is short-sighted in the extreme and nearly always leads to trouble. This is a common trap that has snared many unwary lawyers! Instead, use diplomacy and clear communication, with good rapport and a friendly tone, to help the client understand that working hard on this part of the case is in the client’s best interest. Offer as much help as the client wants to pay for. (In insurance defense cases, it is usually necessary to clear unusual time expenditures for this purpose with the adjuster with carefully written reports that do not risk angering the insured or creating dissention between the insurer and the insured; on contingency cases, this is part of the basis for our fee, but it is generally a good idea to push the client fairly hard to produce all available records.)
If it appears that you will need more than the time allotted by the rules, request your extension at the outset rather than at the last minute, and remember that stipulated extensions will often require court approval (which is the rule in federal court and under some state court’s local rules or standing orders).
Stage 2 Checklist
Continue diligent review of all incoming disclosures, discovery responses and responses to third-party requests; ask yourself again and again what is missing; list it and get it. Note that the material you read will very often tend to suggest the existence of information or sources of which you were unaware, which is why it is important to read newly received documents promptly in order to send out further requests quickly.
Follow up on incomplete responses from opposing counsel and third parties, using subpoenas duces tecum as needed.
Request dates for, and set, any remaining depositions that were not requested in Stage 1.
Depose key fact witnesses.
Ensure that experts have been engaged and provided with materials they need, along with shortened deadlines for reports.
Ensure we possess all Rule 26 information for designation of experts (including testimony histories, fee information, curriculum vitae and lists of publications).
Obtain copies of your expert’s publications where practicable.
Evaluate and file (as appropriate) motions for summary judgement or for determination of questions of law.
Evaluate and file (as appropriate) motions in limine and other evidentiary motions.
File motions to compel discovery if appropriate.
File motions for sanctions if appropriate.
Request admissions on authenticity of exhibits.
Request stipulations of fact, even if not required by court to do so (requesting only stipulations that make sense, and offering “harmless” stipulations in exchange; i.e., don’t fight about whether a fact is true unless there is a genuine possibility that your opponent will not be able to prove it with ease and it is material to the opponent’s case, keeping in mind that “stipulation trading” is an art form, and that evidentiary stipulations can change the outcome of a trial.
Supplement Initial Disclosures and discovery responses (noting that corners which are cut on this one task accounts for a disproportionate amount of stress in litigation, particularly in federal court).
Draft Rule 121 § 1-12 ¶ 5, Rule 37 or Local Rule 7.1 letters, including letters regarding incomplete privilege logs and incorrectly asserted privileges.
Formulate and design key demonstrative graphic exhibits, including models, diagrams, video, animations (reconstructive or demonstrative), demonstrations, site visits, aerial photography (Google Maps or drone), material specimens and structural samples.
Waiting until discovery is complete before commencing trial preparation is, to be blunt, idiotic and self-destructive, but most lawyers make this mistake. Be the one lawyer in the case that does not make this mistake, and this phenomena can operate to your great advantage. Trial preparation is far less stressful when it is commenced before discovery is complete, for nothing need be rushed, the quality of pretrial reports will skyrocket and you will have preserved for its intended use the time for final trial-related motions (such as motions in limine, motions to strike) and trial briefs.
This stage should commence no later than 180 days before trial, and sooner if possible. In point of fact, you could theoretically commence State 3 much earlier—even as early as the commencement of Stage 2, but this Procedure is written as it is to allow for a more orderly development and to eliminate the confusion of tracking too many pending sub-projects simultaneously. You will find that as your knowledge of this Procedure, as well as your skill with GTD and Daylite improves, it will become quite easy for you to work on Stage 2 and Stage 3 simultaneously.
Your functions during this Stage include:
Endorsing experts:(depending upon the deadline) Be thorough in reports and endorsements!
Deposing experts:Pave the way for effective neutralization through cross examination and pretrial motions (including Rule 702 motions).
Develop order of proof for trial: Considering which exhibits and testimony to offer, in what order, and prepare for all evidentiary objections including foundation and authenticity, hearsay and other objections.
Complete remaining fact witness depositions:By preparing your order of proof for trial, it should be easier to spot any remaining depositions that must be taken.
Complete trial preservation (video) depositions: Most courts require that these be completed prior to the discovery cutoff. Be sure to consider any witness who may not be physically available for trial due to schedule conflicts, distant residency, illness or other reasons.
Update disclosures: Be sure your trial evidence is covered in your disclosures, written discovery responses and supplements to these.
Focus groups and mock juries: As needed, consider using these tools.
Written settlement offer update:Check to see that a written settlement offer was made.
Final discovery motion check: Re-evaluate sufficiency of opposing parties’ disclosures and discovery responses.
Stage 3 Checklist:
Carefully re-read all versions of Pre-Trial Order and all standing orders or practice standards.
Consider focus group or mock jury.
File timely and thorough expert designations.
Consider and prepare custom jury instructions and review stock instructions on specific claims and defneses.
Prepare and transmit pretrial reports and summaries to clients; confirm in writing whether the client is ready to proceed to trial and is completely aware of the status of the case; ensure that you and the client are mutually aware of any settlement plan long before things become truly stressful, as they do in the final 60 days before trial.
Depose all experts (unless for tactical reasons you decide not to do so, after clearing this decision well in advance with your supervisor and our client), including experts and non-retained experts listed by opponent.
Depose all key fact witnesses unless you are absolutely sure how they will testify.
Complete video preservation depositions.
Gather all original sealed deposition transcripts.
Consider and prepare specialized demonstrative exhibits, diagrams and models, and disclose them.
Develop list of trial brief issues, including all aspects of foundation and admissibility for your trial exhibits, exclusion of your opponent’s exhibits (other than as summarized in separate motions in limine: specialized substantive law (including disputed jury instructions), anticipated evidentiary objections (noting that this briefing is often as useful, if not more useful than motions in limine due to most court’s inclination not to pre-rule on evidence) and dispositive deposition testimony and admissions not otherwise treated in motions for summary judgment.
Complete list of trial exhibits.
Complete list of trial witnesses.
Inform all witnesses of trial date.
Develop preliminary order of proof, with witnesses linked to exhibits for foundational and substantive testimony.
Develop preliminary witness schedule and be sure witnesses are aware of trial date and testimony date and time.
Load animations and video for use at trial, with backup copies of all electronic files on separate equipment.
Subpoena all witnesses (giving friendly advance notice by phone, and asking them to accept service while carefully monitoring whether they returned signed acceptance forms, leaving yourself time to remind them and serve them if they fail to do so).
Test and practice with projector and other trial equipment (including mobile LAN, mobile hotspots, laser pointers, etc.), using laptops, Trial Pad and other iOS and OSX software.
Create cross-examination summaries of all depositions.
Ensure travel and lodging logistical planning for self, staff and witnesses is in place and complete; verify close restaurants.
Meet with trial witnesses to rehearse testimony.
Finalize preparation of voir dire; draft juror questionnaire and move for use of same to expedite voir dire.
List any in-existence appellate issues that have arisen.
Prepare opening statement.
Stage 4: Final Trial Preparation & Trial
Stage 4 begins on the date of the discovery cutoff (for experts or all discovery, whichever occurs latest), and carries forward the trial preparation that was commenced and largely completed during Stage 3.
Your primary functions during this phase of the case include:
Witnessesmust be aware of their trial testimony time and details, under subpoena and thoroughly prepared to testify.
Exhibits must be properly marked, disclosed and listed with plan and backup plan for admission into evidence, including models if useful.
Motions such as motions in limine, Rule 702 motions, and trial briefs, as well as briefs in support of (or opposition to) objections to witnesses, exhibits or jury instructions or designated deposition and video testimony must be filed (note that this step requires element-by-element analysis of all claims and defenses as well as planning for “half time” and “close of trial” motions that may depend upon specific legal authority you will want in the record).
Jury instructionsand verdict forms must be finalized (as well as objections to the opponent’s instructions and verdict forms).
Depositions must be reviewed for cross examination or reading into record at trial, with appropriate designations on file and all required video editing complete.
Opening statementsmust be planned.
Voir diremust be planned.
Focus groups of mock juries should be considered and used as appropriate and approved
Drafting and filing jury instructions and objections to instructions, the latter portion of which requires coordination of the trial brief with any briefs filed in support of objections to the opposition’s proposed instructions.
Designing alternative verdict forms, which is the natural conclusion of the preparation of jury instructions.
Completing mock jury or focus group sessionsas appropriate in order to fine-tune your trial presentation.
Testing and practicing with audiovisual equipment to make sure it works and that you know how to work it so smoothly that your operation of the technology during trial will not distract the jury or slow your presentation.
Stage 4 Checklist
Re-read all trial requirements published by the trial court, including courtroom procedures, standing orders and practice standards, listing additional tasks required to comply with the same in Daylite.
Re-read Rule 16 to ensure that all requirements therein have been met in preparation for trial (noting that reliance upon the Daylite pipelines and activity sets may not be sufficient depending upon the details of your particular case).
Build a trial calendar in Daylite.
Schedule each witness, ensuring that each person has been notified in writing of the likely time their testimony will be needed.
Ensure that all witnesses have returned acceptance of service forms for their trial subpoenas.
Ensure that all phone numbers (day and evening and cell) and all email and street address information (home and work) is in Daylite in order to facilitate communication at any time of day.
Confirm that all exhibits have been listed and disclosed, both in the form of Rule 26(a)(1) supplementation and listing on pretrial order or attachments as required by the court.
Create trial directories for use with Trial Pad.
Carefully evaluate the evidentiary foundation and admissibility requirements for each and every exhibit and plan how to introduce each exhibit, including who will sponsor the exhibit into evidence and what information must be admitted to make the exhibit itself admissible (considering relevancy, hearsay, authenticity and Rule 702 issues).
Draft and file Rule 702 motions to strike or limit improper expert testimony.
Draft and file objections to opinion testimony from non-retained experts based upon non-disclosure or other admissibility issues
Draft and file motions in limine (for a common list of motions in limine click here).
Draft and file trial brief(s), which should include all foreseeable legal issues for which it will be necessary to have caselaw supporting your position on file in advance, for the purposes of persuading the trial court and preserving the appellate record regarding: (a) admissibility issues, (b) anticipated motions for directed verdict or for judgment as a matter of law; and (c) key jury instructions and verdict forms, as well as to protect the appellate record on these issues.
Review and highlight depositions for the purpose of cross examination, use in lieu of live testimony for unavailable witnesses and designation of preserved testimony.
Prepare each of your witnesses to testify, including mapping out all direct examinations, with careful and systematic consideration of the elements of each claim and defense and the admission of all documentary or tangible evidence, and rehearse with each witness as needed to ensure they are ready and do not fall prey to courtroom stress, confusion or overwhelm, or skillful cross-examination.
Obtain models if useful, noting that even model cars, airplanes and simple demonstrative objects can be terrifically helpful at trial but often require lead time to design build, assemble, order online or find in a store.
Confirm that court reporter is provided or whether private court reporter will be needed
Complete trial management order or final pretrial order (unless required in Stage 3 time frame)
Develop voir dire questions (for more on voir dire and jury selection, click here).
Draft and file jury instructions and objections to instructions, the latter portion of which requires coordination of the trial brief with any briefs filed in support of objections to the opposition’s proposed instructions.
Design alternative verdict forms, which is the natural conclusion of the preparation of jury instructions.
Load all exhibits into Trial Pad and laptops, together with video testimony.
Make hotel reservations and confirm restaurant meeting spot locations.
Practice with jury selection apps on iPad or laptop as appropriate to ensure seamless and effortless implementation at trial.
Ensure that all original deposition transcripts are available for transport to courtroom and use at trial.
Complete witness lists, glossaries, exhibit lists and other last-minute items to provide to court on morning of trial.
Complete mock jury or focus group sessions as appropriate in order to fine-tune your trial presentation.
Test and practice with audiovisual equipment (such as Trial Pad on iPad, wireless connections to projector and projector and screen, as well as speakers when audio is needed) to make sure that all of the technology works, that you are expert in setting it up and troubleshooting when it fails, and that you know how to operate it so smoothly in front of a jury that your operation of the technology during trial will not distract the jury or slow your presentation.
Stage 5: Trial & Post-Trial
Stage 5 combines the trial and post-trial phase of the case, including everything that occurs from the first moment of the trial to the entry of a final judgment pursuant to Rule 54, including all post-trial motions filed with the trial court (other than a Notice of Appeal).
Your primary functions during this phase of the case include:
Skillful completion of the trial.
Report concurrently during the trial to any remote client or insurer not present in the courtroom.
Ensure that judgment is entered correctly in the register of actionsif you prevail at trial.
Filing a bill of costs and statement of attorneys feesas appropriate;
Filing post-trial motions, including but not limited to: (a) motion for judgment notwithstanding the verdict; (b) motion for judgment as a matter of law; and (c) motion for new trial.
Case Planning Meeting Procedure
Case planning should be done systematically. Each case should be the subject of the following process at least every four weeks; more frequent planning is desirable. When a complex case becomes particularly active, it may be necessary to revisit the issues itemized below every few days.
Case planning meetings and case planning sessions should be calendared or set as tasks with reminders, or both.
As we emphasize so frequently, if you don’t have specific information in your mind, you cannot process it or think with it. It is therefore useless. For this reason, the key information about a pending case must reside in the mind of the PRA in addition to being stored in Daylite and on our server.
Before participating in a case management meeting (CPM) with a supervisor or engaging in solo case planning, be very sure you have the following information firmly in mind, and that you can recite the same on demand without the slightest error or uncertainty:
Required Knowledge Checklist:
The trial date
The discovery cutoff date
Our Theory of the Case
Our general trial plan
The deadline for filing dispositive motions
The deadline for filing motions in limine
The dates of all upcoming hearings
The names of the parties, their attorneys (and firms), the name of the adjuster
The names of all key witnesses
The procedural history of the case
Our plans for future discovery
Our plans for substantive and procedural motions practice
Detailed knowledge of the contents of our electronic case files
The status of all pending motions, including the deadlines for filing responses and replies to pending motions
The status of expert disclosures (including the identity and specific opinions of each expert who has been designated)
The date of the most recent comprehensive status report
The Principally Responsible Attorney’s list of what should be added to the task list (if the PRA is meeting with a supervisor)
It is dangerous to handle cases as the PRA without this information firmly planted in your mind for all of your cases. Even if you are conducting a case planning session alone, you must approach your preparation for such planning with the same diligence that would be expected of you by a tough supervisor. You can be your own tough supervisor (noting that when you learn to do that, you are on your way to being promoted to Q status, which often involves a pay raise.)
Do you know what you are doing?
If you appear for a case planning meeting without the above information firmly in your mind, you should be sent back to re-study this bulletin and tested on it thoroughly. You should also be sent back to re-study the case file, and tested on your knowledge of it.
These steps are not designed to inflict punishment or humiliation, but are designed to ensure that we continue to meet our own standards. If you don’t know these basic facts about your case, you can’t possibly perform adequate case planning, for you don’t have enough information in your mind to actively think and plan as you don’t know even the basic parameters of your file well enough to put your brain to task on the specific matter.
Sequence of Steps
The purpose of a case planning session is the intelligent and inspired creation of useful tasks to be completed, which are correctly entered into Daylite with appropriate internal due dates, including an assessment of progress that has been achieved to date.
A formal case planning session should be performed with Daylite open and on a communally viewed monitor, referring as needed to the electronic case file.
Standard Case Briefing
Nature and origin (client source) of the case.
Identification of the court and judge.
Listing of all deadlines, including the trial date, discovery cutoff, motions cutoffs, and other court-imposed (or rule-imposed) due dates.
Case valuation range.
Settlement history, status and authority level.
Status of pending discovery and discovery disputes.
Primary strategies (TOC).
Areas of special concern.
Case Planning Steps
Briefing: PRA delivers Standard Case Briefing (as listed above), or as much of it as is logical given how well the PRA and Q both understand the status of the matter.
Daylite task review: Review in Daylite recently completed and all pending tasks, noting how much of what was tasked at the last planning session remains incomplete and what has been achieved since that time. PRA states what he or she has recently added or believes should be added to task list. If needed, the Q prods for more inspired and deeper thinking, assigning additional tasks.
Review File Notes: Make sure you have read all file notes to capture tasks in notes and get ideas.
Discuss reporting and client satisfaction: PRA summarizes the current status of reporting, and next status report details and deadline (adding same as final task input).
Daylite task entry: PRA inputs all new tasks into Daylite, or at least writes them down as they are originated to enter them later.
Deadlines: Internal & External
Lawyers who fail to understand and faithfully apply the Firm’s workflow management practices and Optimum Caseload Policy tend to produce low quality products at the last minute, or even skip essential steps entirely. This is because they rob themselves of the time needed to do a careful and thoughtful job, and they rob themselves of the time needed to detect and correct mistakes.
Last-minute rushes produce substandard results.
It is for this reason that an attorney must understand the difference between an external and an internal deadline, setting (and meeting) internal deadlines early enough to leave a wide margin for error. Planning for the worst while producing your best requires that you avoid last-minute rushing to meet a deadline—and that you do this with the same fervor you would in order to avoid a life threatening disease.
Don’t kid yourself into thinking that you “work best under pressure.” This belief is a common form of self-delusion used by disorganized, undisciplined workers to justify poor work habits that wreak havoc in a litigation firm. If you must have a metaphorical gun to your head for you to do your work, you are not the kind of professional who will fit well here.
Remember: if you conscientiously and effectively adhere to the practices explained here, keeping on top of your caseload through the use of good workflow management (GTD and Daylite), with frequent, thoughtful and thorough case planning, you are very likely to rapidly rise to the top of this profession. You will find it well worth the effort in the long run, and you will have a lot more fun along the way!
If you frequently deliver key products such as briefs, reports, disclosures and other key items within less than 24 hours before they are due, your work habits will be addressed as a threat to the Firm.
Interactive Task Capture
Verbal assignments forgotten and omitted.
A common and dangerous source of difficulty arises from the failure of lawyers to capture (add to Daylite) tasks that are thought up during informal case discussions or which are assigned outside of formal case planning sessions. Tasks that are assigned “on the fly” during breaks in depositions, at hearings, during car rides, at lunch or over a drink at the end of the day are common examples of lost assignments. The supervisor may think that the PRA is listening and will follow up on the task verbally assigned, but the task does not get done, either because the PRA doesn’t make notes or fails to review his or her notes for tasks that need to be added to Daylite. When a task is not set in Daylite (which is the responsibility of the PRA and not the supervisor) it rarely gets done in a timely manner, if at all.
The supervisor’s job is to order the missing steps. The PRA’s job is to hear, understand and acknowledge assignments without fail, then to enter the assigned tasks in Daylite and ensure that the assignments are completed well and on time.
For years we noted that younger associates often appeared daunted by this standard; eventually we realized that the problem was not that younger lawyers were confused by the idea that they are responsible, but only by the mechanics of capturing and tracking all that they are expected to do. All lawyers, particularly busy ones, need to be guided firmly into a routine that prevents them from missing the actions they need to perform when they are given assignments or directives.
The Daylite and GTD systems are designed to help the PRA do this, but if the PRA forgets the assignment before getting it into the system, the benefit of making the assignment is lost, the benefit of having the system is lost, and the PRA’s future becomes uncertain.
“Dropped balls” and damaged careers.
We have all heard the saying, “the devil is in the details,” and “for the want of a nail a war was lost.” These sayings refer to the notion that, in battle (litigation), small details often decide the outcome. Your ability to take responsibility for and track, a large number of details is one of the two or three primary factors that will determine the trajectory of your career. A surprising number of lawyers are very poor at task management, which is a fact that you can play to your advantage. All you must do is ensure that all tasks are registered in Daylite, that you regularly maintain and update your takslist and worklist, and that you finish your tasks well and on time.
iPhones and notepads.
A technological tool of great value in the process of capturing tasks is the iPhone with Siri configured to synchronize Reminders to Daylite, provides an easy and convenient way of preventing task assignments from being forgotten. A less sophisticated tool and less efficient tool is a written note.
Supervisor: Be sure to request a copy of the PTO file jacket in relation to the ‘028 patent.
Associate: What is a file jacket?
Supervisor: That is a term of art for the summary background and procedural information related to a pending patent application which is maintained by the Patent and Trademark Office. It used to be written on the outside of file folders when they were maintained in paper form; now it is electronically stored information. Call the PTO or check the PTO website and you’ll learn how to formally make the request.
Associate: Okay. Will do. Give me a second. [Associate pulls out iPhone and makes voice note.] I’ll get it done this week, if that is soon enough
Supervisor: [smiling] Great!
Another is the use of written notes, but one must be disciplined in processing those notes through the good GTD practices.
Special Problem: “Ducking” Orders And Tasks.
We have on occasion encountered staff members who are deliberately unreliable. In these employees, we encountered a practice we call “ducking,” which is failing to unequivocally acknowledge an assignment and responding instead in a manner designed to achieve plausible deniability, or somehow leave the impression that an assignment has not really registered as a specific order that must be carried out competently and professionally. An attorney who uses this destructive tactic often later responds with feigned innocence, once it becomes clear that the task did not get done in a timely manner, saying something like, “Oh, you really wanted me to do that? I wasn’t sure we had finalized that idea.”
It is important for all employees in this Firm to understand that our corporate culture has evolved to swiftly and effectively eradicate such conduct through: (a) directly confronting unreliable behavior patterns without regard to hurt feelings; and (b) if directly confronting traits of unreliability fails to remedy the problem, to replace the employee with someone who is both responsive and reliable.
Here is an example:
Supervisor: Be sure to request a copy of the deposition that Dr. Flemming gave in the Stenovich case.
Associate: Do you think Dr. Flemming is a good witness? I’m not sure a jury will like him.
Supervisor: That may be, but be sure to order that deposition anyway.
Associate: But I think he’s an ass. $600 per hour for that rubbish? Come on!
Supervisor: Be sure to order that deposition.
Associate: Okay, but I’m not sure they’ll give it to me.
Supervisor: [recognizing and directly confronting the problem] I feel like you’re ducking this assignment. Do not say another word until you acknowledge this directive and promise me that, one way or another, it will get done. I also want you to send me an email confirming that you’ve put this assignment on your work list in Daylite. Then re-read and refresh your understanding of the section on “ducking” in the Firm’s Case Planning Procedure. Come back and see me when you have re-read that, and we’ll talk about why I’ve given you that particular study assignment. Do you have any questions about what I’m asking you to do right now?
If you are a supervisor, you will find this practice of dodging or ducking a verbal assignment with an equivocal acknowledgement to be both easily spotted and worrisome. If you observe this trait in a member of your team, you should confront it immediately, directly and decisively, for it may be a sign that we can’t rely on a lawyer to accept, track and complete verbally assigned tasks, which makes such a lawyer completely useless to the Firm.
Similarly, an attorney who utilizes evasive acknowledgements; to create the illusion of plausible deniability (acting as though he or she didn’t quite hear or catch the assignment or order) should expect negative feedback or worse. An attorney who adopts an attitude of being insulted or upset because of a supervisor’s direct confrontation of this practice is in danger of suddenly escalating a bad situation into one that is terminal, because smooth and reliable verbal assignment of tasks is instrumental to efficiently supervised case management.
To erase the bad taste that may have been created by the discussion above, let us observe a much more pleasing cycle of communication:
Supervisor: Be sure to request a copy of the PTO file jacket in relation to the ‘028 patent.
Associate: What is a file jacket?
Supervisor: That is a term of art for the summary background and procedural information related to a pending patent application which is maintained by the Patent and Trademark Office. It used to be written on the outside of file folders when they were maintained in paper form; now it is electronically stored information. Call the PTO or check the PTO website and you’ll learn how to formally make the request.
Associate: Okay. Will do. Give me a second. [Associate pulls out iPhone and makes voice note.] I’ll get it done this week, if that is soon enough.
Supervisor: [smiling] Great!
Congratulations on completing a successful reading of one of our most essential Procedures!
This Policy has given you a virtual goldmine of information with which you can now become a truly skilled litigator—particularly if you couple this information with what is contained in our Practice Guides and other Procedures. Because there is so much information here, we require that you constantly refresh yourself on the contents of this Procedure by re-reading it frequently. A Firm mantra we often recite is: the more times you go through material, the more certain you are about what it contains.
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General.On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to produce documents or fails to respond that inspection will be permitted -- or fails to permit inspection -- as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
Action by George E. Hickman, as administrator of the Estate of Norman E. Hickman, deceased, against John M. Taylor and George Anderson individually and trading as Taylor & Anderson Towing and Lighterage Company for death of plaintiff’s decedent. There was a judgment of the Circuit Court of Appeals, 153 F.2d 212, reversing a judgment of the district court, 4 F.R.D. 479, adjudging the defendants and their attorney Samuel B. Fortenbaugh, Jr., guilty of contempt for refusal to answer an interrogatory, and the plaintiff brings certiorari.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit.
170Ak1273Adverse party’s case, matters relating to
Public policy supports reasonable and necessary inquiries into a person’s files and records, including those resulting from the professional activities of an attorney, but the right to examination in a particular case must be carefully determined. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A.
Where plaintiff addressed simple interrogatories solely to adverse parties as contemplated by rule 33, which does not permit interrogatories to be addressed to counsel of adverse parties, and there were no interrogatories by way of deposition under rule 26 or motion for an order directing the production of documents under rule 34, which is limited to parties, plaintiff was proceeding primarily under rule 33. Fed.Rules Civ.Proc. rules 26, 33, 34, 28 U.S.C.A.
170Ak1554Other remedy, availability or prior use of
Memoranda or statements gathered by counsel for defendants after claim had arisen could not be obtained by plaintiff by means of interrogatories addressed to defendants under rule 33, nor by means of an order under rule 34, but the only recourse was to take the deposition of counsel under rule 26 and to serve a subpoena duces tecum on him in conformity with rule 45. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A.
170Bk3200Persons entitled to seek review or assert arguments; parties
(Formerly 170Bk452, 106k383(1))
Where both lower courts had passed on whether plaintiff was entitled to access to written and oral statements or reports gathered by defendants’ counsel after claim had arisen, although plaintiff had not invoked the proper remedy, and the Supreme Court had granted certiorari because of the importance of the question and the divergent views of district courts, the procedural irregularity would be disregarded as immaterial. Federal Rules of Civil Procedure, rules 26, 33, 34, 45, 28 U.S.C.A. following section 723c.
170Ak1273Adverse party’s case, matters relating to
Mutual knowledge of all relevant facts gathered by parties to litigation is essential, and where it is essential to the preparation of one’s case either party may, in good faith, compel the other to disclose whatever relevant facts he has in his possession, if not otherwise privileged, without regard to the time-honored defense of “fishing expedition”. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A.
Information which an attorney secures from a witness while acting for his client in anticipation of litigation is not privileged, and neither are memoranda, briefs, communications or other writings prepared by counsel for his own use in prosecuting his client’s case or writings which reflect attorney’s mental impressions, conclusions, opinions or legal theories.
170Ak1273Adverse party’s case, matters relating to
Where all the details regarding accident involved had been fully covered by answers to thirty-eight interrogatories and plaintiff had access to the public testimony of witnesses taken by federal inspectors, as well as to the witnesses, and there was no showing that access to statements obtained from witnesses by counsel for defendants or to other memoranda, statements or reports of counsel was necessary, plaintiff was not entitled to access to such matters. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A.
Whether discovery of written statements secured from witnesses by counsel of adverse party should be allowed rests in discretion of trial judge upon a proper showing, but where there was no showing of necessity therefor there was no occasion for the exercise of discretion even though the statements were not privileged. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b), (d), 31(d), 33, 34, 45, 28 U.S.C.A.
Plaintiff was not entitled to disclosure of oral statements made by witnesses to attorney for defendant after claim arose, in view of full answers to interrogatories covering all phases of accident involved and other sources of information available to plaintiff. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A.
170Ak1273Adverse party’s case, matters relating to
Where numerous interrogatories covering all phases of accident involved had been fully answered by defendants and other sources of information were available, that oral statements obtained from witnesses by defendants’ attorney would enable plaintiff’s attorney to prepare for cross-examination of such witnesses was insufficient reason for compelling disclosure of such matters. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A.
**387 Mr. *497 Abraham E. Freedman, of Philadelphia, Pa., for petitioner.
Messrs. William I. Radner, of Washington, D.C., and Samuel B. Fortenbaugh, Jr., of Philadelphia, Pa., for respondents.
Mr. Justice MURPHY delivered the opinion of the Court.
 This case presents an important problem under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as to the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party’s counsel in the course of preparation for possible litigation after a claim has arisen. Examination into a person’s files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man’s work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task.
*498 On February 7, 1943, the tug ‘J. M. Taylor’ sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug.
A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. Ultimately claims were presented by representatives of all five of the deceased; four of the claims, however, were settled without litigation. The fifth claimant, petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad.
One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: ‘State whether any statements of the members of the crews of the Tugs ‘J. M. Taylor’ and ‘Philadelphia’ or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug ‘John M. Taylor’. *499
Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.’
Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made **388 concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements or other memoranda.
The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called ‘for privileged matter obtained in preparation for litigation’ and constituted ‘an attempt to obtain indirectly counsel’s private files.’ It was claimed that answering these requests ‘would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel.’
In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements. But he was not expressly asked in the deposition to produce the statements. The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith ‘Answer Plaintiff’s 38th interrogatory and supplemental interrogatories; produce all written statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants; *500 state in substance any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh whether or not included in his private memoranda and produce Mr. Fortenbaugh’s memoranda containing statements of fact by witnesses or to submit these memoranda to the Court for determination of those portions which should be revealed to Plaintiff.’ Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied.
The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. 153 F.2d 212. It held that the information here sought was part of the ‘work product of the lawyer’ and hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of the problem, which has engendered a great divergence of views among district courts,1 led us to grant certiorari. 328 U.S. 876, 66 S.Ct. 1337.
See cases collected by Advisory Committee on Rules for Civil Procedure in its Report of Proposed Amendments (June, 1946), pp. 40—47; 5 F.R.D. 433, 457—460. See also 2 Moore’s Federal Practice (1945 Cum.Supp.), s 26.12, pp. 155—159; Holtzoff, ‘Instruments of Discovery under Federal Rules of Civil Procedure,’ 41 Mich.L.Rev. 205, 210—212; Pike and Willis, ‘Federal Discovery in Operation,’ 7 Univ. of Chicago L.Rev. 297, 301—307.
The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings.2 Inquiry into the issues and the facts before trial was *501 narrowly confined and was often cumbersome in method.3 The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow **389 and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.4
‘The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader’s allegations and denials.’ Sunderland, ‘The Theory and Practice of Pre-Trial Procedure,’ 36 Mich.L.Rev. 215, 216. See also Ragland, Discovery Before Trial (1932), ch. I.
Pike and Willis, ‘The New Federal Deposition-Discovery Procedure,’ 38 Col.L.Rev. 1179, 1436; Pike, ‘The New Federal Deposition-Discovery Procedure and the Rules of Evidence,’ 34 Ill.L.Rev. 1.
There is an initial question as to which of the deposition-discovery rules is involved in this case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33. That rule provides that a party may serve upon any adverse party written interrogatories to be answered by the party served.5 The District Court proceeded *502 on the same assumption in its opinion, although its order to produce and its contempt order stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby, upon motion of any party showing good cause therefor and upon notice to all other parties, the court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc., not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.6
Rule 33 reads: ‘Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 15 days after the delivery of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. Objections to any interrogatories may be presented to the court within 10 days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.’
Rule 34 provides: ‘Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.’
The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it said, was proceeding by interrogatories and, in connection with those interrogatories, wanted copies of memoranda and statements secured from witnesses. While the court believed that Rule 33 was involved, at least as to the defending tug owners, it stated that this rule could not be used as the basis for condemning Fortenbaugh’s failure to disclose or produce *503 the memoranda and statements, since the rule applies only to interrogatories addressed to adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since petitioner was not trying to see an original document and to copy or photograph it, within the scope of that rule. The court then concluded that Rule 26 must be the one really involved. That provides that the testimony of any person, whether a party or not, may be **390 taken by any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence; and that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things.7
The relevant portions of Rule 26 provide as follows:
‘(a) When Depositions May be Taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken at the instance of any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(b) Scope of Examination. Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.’
*504 The matter is not without difficulty in light of the events that transpired below. We believe, however, that petitioner was proceeding primarily under Rule 33. He addressed simple interrogatories solely to the individual tug owners, the adverse parties, as contemplated by that rule. He did not, and could not under Rule 33, address such interrogatories to their counsel, Fortenbaugh. Nor did he direct these interrogatories either to the tug owners or to Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. And it does not appear from the record that petitioner filed a motion under Rule 34 for a court order directing the producetion of the documents in question. Indeed, such an order could not have been entered as to Fortenbaugh since Rule 34, like Rule 33, is limited to parties to the proceeding, thereby excluding their counsel or agents.
 Thus to the extent that petitioner was seeking the production of the memoranda and statements gathered by Fortenbaugh in the course of his activities as counsel, petitioner misconceived his remedy. Rule 33 did not permit him to obtain such memoranda and statements as dejuncts to the interrogatories addressed to the individual tug owners. A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. But that is not this case. Here production was sought of documents prepared by a party’s attorney after the claim has arisen. Rule 33 does not make provision for such production, even when sought in connection with permissible interrogatories. Moreover, since petitioner was also foreclosed from securing them through an order under Rule 34, his only recourse was to take Fortenbaugh’s deposition under Rule 26 and to attempt to force Fortenbaugh to produce the materials by use of a subpoena duces tecum in accordance with Rule 45. Holtzoff, ‘Instruments of Discovery under the Federal Rules of Civil Procedure,’ *505 41 Mich.L.Rev. 205, 220. But despite petitioner’s faulty choice of action, the District Court entered an order, apparently under Rule 34, commanding the tug owners and Fortenbaugh, as their agent and counsel, to produce the materials in question. Their refusal led to the anomalous result of holding the tug owners in contempt for failure to produce that which was in the possession of their counsel and of holding Fortenbaugh in contempt for failure to produce that which he could not be compelled **391 to produce under either Rule 33 or Rule 34.
 But under the circumstances we deem it unnecessary and unwise to rest our decision upon this procedural irregularity, an irregularity which is not strongly urged upon us and which was disregarded in the two courts below. It matters little at this later stage whether Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices. And the basic question at stake is whether any of those devices may be used to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation. The fact that the petitioner may have used the wrong method does not destroy the main thrust of his attempt. Nor does it relieve us of the responsibility of dealing with the problem raised by that attempt. It would be inconsistent with the liberal atmosphere surrounding these rules to insist that petitioner now go through the empty formality of pursuing the right procedural device only to reestablish precisely the same basic problem now confronting us. We do not mean to say, however, that there may not be situations in which the failure to proceed in accordance with a specific rule would be important or decisive. But in the present circumstances, for the purposes of this decision, the procedural *506 irregularity is not material. Having noted the proper procedure, we may accordingly turn our attention to the substance of the underlying problem.
In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh, petitioner emphasizes that the deposition-discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts and to compel their disclosure wherever they may be found. It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery provisions are to be applied as broadly and liberally as possible, the privilege limitation must be restricted to its narrowest bounds. On the premise that the attorney-client privilege is the one involved in this case, petitioner argues that it must be strictly confined to confidential communications made by a client to his attorney. And since the materials here in issue were secured by Fortenbaugh from third persons rather than from his clients, the tug owners, the conclusion is reached that these materials are proper subjects for discovery under Rule 26.
As additional support for this result, petitioner claims that to prohibit discovery under these circumstances would give a corporate defendant a tremendous advantage in a suit by an individual plaintiff. Thus in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company the corporate defendant could pull a dark veil of secrecy over all the petinent facts it can collect after the claim arises merely on the assertion that such facts were gathered by its large staff of attorneys and claim agents. At the same time, the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel until some time after his claim arises could be compelled to disclose all the intimate details of his case. By endowing with *507 immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the rights of individual litigants in such cases are drained of vitality and the lawsuit becomes more of a battle of deception than a search for truth.
 But framing the problem in terms of assisting individual plaintiffs in their suits against corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant. The problem thus far transcends the situation **392 confronting this petitioner. And we must view that problem in light of the limitless situations where the particular kind of discovery sought by petitioner might be used.
 We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case.8 Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown *508 that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.
‘One of the chief arguments against the ‘fishing expedition’ objection is the idea that discovery is mutual—that while a party may have to disclose his case, he can at the same time tie his opponent down to a definite position.’ Pike and Willis, ‘Federal Discovery in Operation,’ 7 Univ. of Chicago L.Rev. 297, 303.
 We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client’s case; and it is equally unrelated to writings which reflect an attorney’s mental impressions, conclusions, opinions or legal theories.
 But the impropriety of invoking that privilege does not provide an answer to the problem before us. Petitioner has made more than an ordinary request for relevant, non-privileged facts in the possession of his adversaries or their counsel. He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. He has sought production of these matters after making the most searching inquiries of his opponents as to the circumstances surrounding the fatal accident, which inquiries were sworn to have been answered to the best of their information and belief. Interrogatories were directed toward all the events prior to, during and subsequent to the sinking of the tug. Full and honest answers to such broad inquiries would necessarily have included all *509 pertinent information gleaned by Fortenbaugh through his interviews with the witnesses. Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses taken before the United States Steamboat Inspectors. We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already **393 through the interrogatories or is readily available to him direct from the witnesses for the asking.
The District Court, after hearing objections to petitioner’s request, commanded Fortenbaugh to produce all written statements of witnesses and to state in substance any facts learned through oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he had made of the oral statements so that the court might determine what portions should be revealed to petitioner. All of this was ordered without any showing by petitioner, or any requirement that he make a proper showing, of the necessity for the production of any of this material or any demonstration that denial of production would cause hardship or injustice. The court simply ordered production on the theory that the facts sought were material and were not privileged as constituting attorney-client communications.
In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these *510 rules.9 Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
The English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation. ‘All documents which are called into existence for the purpose—but not necessarily the sole purpose—of assisting the deponent or his legal advisers in any actual or anticipated litigation are privileged from production. * * * Thus all proofs, briefs, draft pleadings, etc., are privileged; but not counsel’s indorsement on the outside of his brief * * *, nor any deposition or notes of evidence given publicly in open Court. * * * So are all papers prepared by any agent of the party bona fide for the use of his solicitor for the purposes of the action, whether in fact so used or not. * * * Reports by a company’s servant, if made in the ordinary course of routine, are not privileged, even though it is desirable that the solicitor should have them and they are subsequently sent to him; but if the solicitor has requested that such documents shall always be prepared for his use and this was one of the reasons why they were prepared, they need not by disclosed.’ Odgers on Pleading and Practice (12th ed., 1939), p. 264.
See Order 31, rule 1, of the Rules of the Supreme Court, 1883, set forth in The Annual Practice, 1945, p. 519, and the discussion following that rule. For a compilation of the English cases on the matter see 8 Wigmore on Evidence (3d ed., 1940), s 2319, pp. 618—622, notes.
 Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. *511 Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, **394 would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
 We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under *512 such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted.10
Rule 34 is explicit in its requirements that a party show good cause before obtaining a court order directing another party to produce documents. See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946); 5 F.R.D. 433.
Rule 30(b), as presently written, gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. But in the instant case there was no room for that discretion to operate in favor of the petitioner. No attempt was made to establish any reason why Fortenbaugh should be forced to produce the written statements. There was only a naked, general demand for these materials as of right and a finding by the District Court that no recognizable privilege was involved. That was insufficient to justify discovery under these circumstances and the court should have sustained the refusal of the tug owners and Fortenbaugh to produce.
 But as to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account *513 to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses’ remarks. Such testimony could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer.
 Denial of production of this nature does not mean that any material, non-privileged facts can be hidden from the petitioner in this case. He need not be unduly hindered in the preparation of his case, in the discovery of facts or in his anticipation of his opponents’ position. Searching interrogatories directed to Fortenbaugh and the tug owners, production of written documents and statements upon a proper showing and direct interviews with the witnesses themselves all serve to reveal the facts in Fortenbaugh’s possession to **395 the fullest possible extent consistent with public policy. Petitioner’s counsel frankly admits that he wants the oral statements only to help prepare himself to examine witnesses and to make sure that he has overlooked nothing. That is insufficient under the circumstances to permit him an exception to the policy underlying the privacy of Fortenbaugh’s professional activities. If there should be a rare situation justifying production of these matters, petitioner’s case is not of that type.
We fully appreciate the wide-spread controversy among the members of the legal profession over the problem raised by this case.11 It is a problem that rests on what *514 has been one of the most hazy frontiers of the discovery process. But until some rule or statute definitely prescribes otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of unqualified right. When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.
See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946), pp. 44—47; 5 F.R.D. 433, 459, 460; Discovery Procedure Symposium before the 1946 Conference of the Third United States Circuit Court of Appeals, 5 F.R.D. 403; Armstrong, ‘Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending Amendments,’ 5 F.R.D. 339, 353—357.
We therefore affirm the judgment of the Circuit Court of Appeals.
Mr. Justice JACKSON, concurring.
The narrow question in this case concerns only one of thirty-nine interrogatories which defendants and their counsel refused to answer. As there was persistence in refusal after the court ordered them to answer it, counsel and clients were committed to jail by the district court until they should purge themselves of contempt.
The interrogatory asked whether statements were taken from the crews of the tugs involved in the accident, or of any other vessel, and demanded ‘Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.’ The question is simply whether such a demand is authorized by the rules relating to various aspects of ‘discovery’.
The primary effect of the practice advocated here would be on the legal profession itself. But it too often is overlooked *515 that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs. The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences of such a practice as petitioner urges secondarily but certainly.
‘Discovery’ is one of the working tools of the legal profession. It traces back to the equity bill of discovery in English Chancery practice and seems to have had a forerunner in Continental practice. See Ragland, Discovery Before Trial (1932) 13-16. Since 1848 when the draftsmen of New York’s Code of Procedure recognized the importance of a better system of discovery, the impetus to extend and expand discovery, as well as the opposition to it, has come from within the Bar itself. It happens in this case that it is the plaintiff’s attorney who demands such unprecedented latitude of discovery and, strangely enough, amicus briefs in his support have been filed by several labor unions representing plaintiffs as a class. It is the history of the movement for broader discovery, however, that in actual experience the chief opposition to its extension has come from lawyers **396 who specialize in representing plaintiffs because defendants have made liberal use of it to force plaintiffs to disclose their cases in advance. See Report of the Commission on the Administration of Justice in New York State (1934) 330, 331; Ragland, Discovery Before Trial (1932) 35, 36. Discovery is a two-edged sword and we cannot decide this problem on any doctrine of extending help to one class of litigants.
It seems clear and long has been recognized that discovery should provide a party access to anything that is evidence in his case. Cf. Report of Commission on the Administration of Justice in New York State (1934) 41, 42. *516 It seems equally clear that discovery should not nullify the privilege of confidential communication between attorney and client. But those principles give us no real assistance here because what is being sought is neither evidence nor is it a privileged communication between attorney and client.
To consider first the most extreme aspect of the requirement in litigation here, we find it calls upon counsel, if he has had any conversations with any of the crews of the vessels in question or of any other, to ‘set forth in detail the exact provision of any such oral statements or reports.’ Thus the demand is not for the production of a transcript in existence but calls for the creation of a written statement not in being. But the statement by counsel of what a witness told him is not evidence when written plaintiff could not introduce it to prove his case. What, then, is the purpose sought to be served by demanding this of adverse counsel?
Counsel for the petitioner candidly said on argument that he wanted this information to help prepare himself to examine witnesses, to make sure he overlooked nothing. He bases his claim to it in his brief on the view that the Rules were to do away with the old situation where a law suit developed into ‘a battle of wits between counsel.’ But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.
The real purpose and the probable effect of the practice ordered by the district court would be to put trials on a level even lower than a ‘battle of wits.’ I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him. Even if his recollection were perfect, the statement would be his language *517 permeated with his inferences. Every one who has tried it knows that it is almost impossible so fairly to record the expressions and emphasis of a witness that when he testifies in the environment of the court and under the influence of the leading question there will not be departures in some respects. Whenever the testimony of the witness would differ from the ‘exact’ statement the lawyer had delivered, the lawyer’s statement would be whipped out to impeach the witness. Counsel producing his adversary’s ‘inexact’ statement could lose nothing by saying, ‘Here is a contradiction, gentlemen of the jury. I do not know whether it is my adversary or his witness who is not telling the truth, but one is not.’ Of course, if this practice were adopted, that scene would be repeated over and over again. The lawyer who delivers such statements often would find himself branded a deceiver afraid to take the stand to support his own version of the witness’s conversation with him, or else he will have to go on the stand to defend his own credibility—perhaps against that of his chief witness, or possibly even his client.
Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he wants to do so but in self-defense.
And what is the lawyer to do who has interviewed one whom he believes to be a **397 biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him. Perhaps the other side would not want to *518 call him either, but the attorney is open to the charge of suppressing evidence at the trial if he fails to call such a hostile witness even though he never regarded him as reliable or truthful.
Having been supplied the names of the witnesses, petitioner’s lawyer gives no reason why he cannot interview them himself. If an employee-witness refuses to tell his story, he, too, may be examined under the Rules. He may be compelled on discovery as fully as on the trial to disclose his version of the facts. But that is his own disclosure—it can be used to impeach him if he contradicts it and such a deposition is not useful to promote an unseemly disagreement between the witness and the counsel in the case.
It is true that the literal language of the Rules would admit of an interpretation that would sustain the district court’s order. So the literal language of the Act of Congress which makes ‘Any writing or record * * * made as a memorandum or record of any * * * occurrence, or event,’ 28 U.S.C.A. s 695, admissible as evidence, would have allowed the railroad company to put its engineer’s accident statements in evidence. Cf. Palmer v. Hoffman, 318 U.S. 109, 111, 63 S.Ct. 477, 479, 87 L.Ed. 645, 144 A.L.R. 719. But all such procedural measures have a background of custom and practice which was assumed by those who wrote and should be by those who apply them. We reviewed the background of the Act and the consequences on the trial of negligence cases of allowing railroads and others to put in their statements and thus to shield the crew from cross-examination. We said, ‘Such a major change which opens wide the door to avoidance of cross-examination should not be left to implication.’ 318 U.S. at page 114, 63 S.Ct. at page 481. We pointed out that there, as here, the ‘several hundred years of history behind the Act * * * indicate the nature of the reforms which it was designed to effect.’ *519318 U.S. at page 115, 63 S.Ct. at page 481. We refused to apply it beyond that point. We should follow the same course of reasoning here. Certainly nothing in the tradition or practice of discovery up to the time of these Rules would have suggested that they would authorize such a practice as here proposed.
The question remains as to signed statements or those written by witnesses. Such statements are not evidence for the defendant. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477. Nor should I think they ordinarily could be evidence for the plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if he is called and if he departs from the statement. There might be circumstances, too, where impossibility or difficulty of access to the witness or his refusal to respond to requests for information or other facts would show that the interests of justice require that such statements be made available. Production of such statements are governed by Rule 34 and on ‘Showing good cause therefor’ the court may order their inspection, copying or photographing. No such application has here been made; the demand is made on the basis of right, not on showing of cause.
I agree to the affirmance of the judgment of the Circuit Court of Appeals which reversed the district court.
Subdivision (b)(3)--Trial Preparation: Materials. Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial. The existing rules make no explicit provision for such materials. Yet, two verbally distinct doctrines have developed, each conferring a qualified immunity on these materials--the “good cause” requirement in Rule 34 (now generally held applicable to discovery of documents via deposition under Rule 45 and interrogatories under Rule 33) and the work-product doctrine of Hickman v. Taylor, 329 U.S. 495 (1947). Both demand a showing of justification before production can be had, the one of “good cause” and the other variously described in the Hickman case: “necessity or justification,” “denial * * * would unduly prejudice the preparation of petitioner's case,” or “cause hardship or injustice” 329 U.S. at 509-510. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in 1947 for an approach to the problem of trial preparation materials by judicial decision rather than by rule. Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal.
The major difficulties visible in the existing case law are (1) confusion and disagreement as to whether “good cause” is made out by a showing of relevance and lack of privilege, or requires an additional showing of necessity, (2) confusion and disagreement as to the scope of the Hickman work-product doctrine, particularly whether it extends beyond work actually performed by lawyers, and (3) the resulting difficulty of relating the “good cause” required by Rule 34 and the “necessity or justification” of the work-product doctrine, so that their respective roles and the distinctions between them are understood.
The rules are amended by eliminating the general requirement of “good cause” from Rule 34 but retaining a requirement of a special showing for trial preparation materials in this subdivision. The required showing is expressed, not in terms of “good cause” whose generality has tended to encourage confusion and controversy, but in terms of the elements of the special showing to be made: substantial need of the materials in the preparation of the case and inability without undue hardship to obtain the substantial equivalent of the materials by other means.
These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy (as with respect to income tax returns or grand jury minutes) or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order. On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side. See Field and McKusick, Maine Civil Practice 264 (1959).
Elimination of a “good cause” requirement from Rule 34 and the establishment of a requirement of a special showing in this subdivision will eliminate the confusion caused by having two verbally distinct requirements of justification that the courts have been unable to distinguish clearly. Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case. The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks.
A complication is introduced by the use made by courts of the “good cause” requirement of Rule 34, as described above. A court may conclude that trial preparation materials are not work-product because not the result of lawyer's work and yet hold that they are not producible because “good cause” has not been shown. Cf. Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962), cited and described above. When the decisions on “good cause” are taken into account, the weight of authority affords protection of the preparatory work of both lawyers and nonlawyers (though not necessarily to the same extent) by requiring more than a showing of relevance to secure production.
Subdivision (b)(3) reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators and claim-agents. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.
Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions. But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use.
(4) Trial Preparation: Experts.
* * *
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
Colorado Rule of Professional Responsibility Rule 1.6
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the ﬁnancial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(4) to prevent, mitigate, or rectify substantial injury to the ﬁnancial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or
(8) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Rule 1.3. Diligence
Colorado Court Rules Colorado Rules of Professional Conduct
As amended through Rule Change 2018(6), effective April 12, 2018
A lawyer shall act with reasonable diligence and promptness in representing a client.
Cite as RPC 1.3
History. Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008.
 A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
 A lawyer's work load must be controlled so that each matter can be handled competently.
 Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.
 Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.
 To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer); C.R.C.P. 251.32(h).
Where does the notion that an attorney has a duty of "zealous advocacy" come from? Judge Steve Briggs gives us the answer.
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
[insert caption here]
[PROPOSED] [STIPULATED AGREEMENT AND] ORDER UNDER FED. R. EVID. 502(d)
WHEREAS, [[[Plaintiff/Defendant] [PLAINTIFF'S NAME/DEFENDANT'S NAME] requests that this Court issue an order/Plaintiff [PLAINTIFF'S NAME] and Defendant [DEFENDANT'S NAME]] (together, "the Parties") jointly request that this Court issue an Order/this Court is issuing this Order] pursuant to Federal Rule of Evidence 502(d) to facilitate production and use of documents in this proceeding and to protect the [Parties/Defendant/Plaintiff] against waiver of any privileges or protections attaching to those documents;
WHEREAS, the [Parties/Defendant/Plaintiff] [and non-parties] may produce documents, answer interrogatories, and provide testimony and other information that may contain information covered by the attorney-client privilege or work product protection;
WHEREAS, absent an order from the Court, under certain circumstances, the production of privileged or protected information can operate as a waiver of any applicable privilege, protection, and/or immunity with respect to disclosure in this case and other Federal or State proceedings;
[WHEREAS, the [Parties/Defendant/Plaintiff] [wish/wishes] to expedite and facilitate the production of [a large volume of] electronic and hard copy data, information, and documents, and to protect against waiver as a result of the inadvertent [or intentional] disclosure of attorney-client privileged communications or work product materials;]
WHEREAS, Fed. R. Evid. 502(d) states that "[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure is also not a waiver in any other federal or state proceeding;"
WHEREAS, this Court finds good cause to issue an order pursuant to Fed. R. Evid. 502(d)[./; and]
[WHEREAS, the Court shall retain jurisdiction over any matter or dispute arising from or relating to the implementation of this order.]
IT IS HEREBY [STIPULATED, AGREED, AND] ORDERED that, pursuant to Fed. R. Evid. 502(d), a Party's inadvertent [or intentional] disclosure or production of any documents or information in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by that Party of any privilege or protection applicable to those documents, including the attorney-client privilege, work product protection, and any other privilege or protection recognized by law.
The provisions of Fed. R. Evid. 502(b) are inapplicable to the production of documents or information under this Order. Specifically, there has been no waiver if a party discloses privileged or protected information [inadvertently or otherwise], regardless of whether the party took reasonable steps to prevent the disclosure or to rectify the error. [Such [inadvertently produced] documents or information may be considered Confidential Information under the Confidentiality Agreement [(docket no. [NUMBER])] entered in this case on [DATE] ("Confidentiality Agreement").]
[Any party receiving any such [inadvertently produced] documents or information shall return them to the producing party, upon request, within [NUMBER] business days of receiving such request, delete any versions of the documents it maintains, and make no use of the information contained therein regardless of whether the receiving party agrees with the claim of privilege and/or work product protection. Nothing in this Order shall prevent a receiving party from challenging the privilege or protection asserted by the producing party by [following the procedure outlined in paragraph [NUMBER] of the Confidentiality Agreement/[ALTERNATIVE PROCEDURE]]. Pursuant to Fed. R. Civ. P. 26, the producing party bears the burden of establishing the privilege or protection of all such challenged documents. [The time periods herein can be extended if the parties agree in writing.]]
[Disclosure of information or documents by the receiving party before the producing party designates the information as protected shall not be deemed a violation of this Order.] [SIGNATURE PAGE FOLLOWS] [SO STIPULATED AND AGREED.
Dated: [DATE] [CITY], [STATE] [NAME OF LAW FIRM] ______________________________ [ATTORNEY'S NAME] [ADDRESS] [PHONE NUMBER] [EMAIL ADDRESS] Attorneys for [NAME OF PLAINTIFF(S)] [NAME OF LAW FIRM] ______________________________ [ATTORNEY'S NAME] [ADDRESS] [PHONE NUMBER] [EMAIL ADDRESS] Attorneys for [NAME OF DEFENDANT(S)]]
SO ORDERED. Dated: [DATE] [CITY], [STATE] ______________________________ [JUDGE'S NAME] United States [District/Magistrate] Judge
From the Colorado Dispute Resolution Act—Colo.Rev.Stat. 13-22-301 et seq.
Colo.Rev.Stat. § 13-22-307. Confidentiality
(1) Dispute resolution meetings may be closed at the discretion of the mediator.
(2) Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that:
(a) All parties to the dispute resolution proceeding and the mediator consent in writing; or
(b) The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or
(c) The mediation communication is required by statute to be made public; or
(d) Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.
(3) Any mediation communication that is disclosed in violation of this section shall not be admitted into evidence in any judicial or administrative proceeding.
(4) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a mediation service proceeding or dispute resolution proceeding.
(5) Nothing in this section shall prevent the gathering of information for research or educational purposes, or for the purpose of evaluating or monitoring the performance of a mediator, mediation organization, mediation service, or dispute resolution program, so long as the parties or the specific circumstances of the parties' controversy are not identified or identifiable.
The DISTRICT COURT In and For the FOURTH JUDICIAL DISTRICT and the Honorable William E. Rhodes, one of the Judges thereof, Respondents.
Jan. 18, 1982.
Following denial by trial court of insured’s motion to compel discovery in suit against fire insurer for refusal to pay claim, insured brought original proceeding challenging the ruling. The Supreme Court, Quinn, J., held that: (1) fact that denial of motion to compel discovery would preclude insured from obtaining information vital to his claims for relief justified exercise of original jurisdiction; and (2) in absence of showing by fire insurer that investigative reports and witnesses’ statements were prepared in anticipation of litigation or for trial, trial court had to presume that such documents were prepared in the ordinary course of business and therefore not subject to the special discovery requirements for trial preparation materials; and (3) even if insurer demonstrated that the documents did constitute trial preparation materials, insured suing insurer for failure to pay claim could obtain discovery, except for mental impressions, conclusions, opinions or legal theories, upon showing of substantial need for materials in the preparation of his case and inability without undue hardship to obtain the substantial equivalent of the requested information by other means.
Rule made absolute and respondent court directed to reconsider motion.
Orders pertaining to pretrial discovery are interlocutory in nature and generally are not reviewable in an original proceeding, but Supreme Court will exercise its original jurisdiction when a pretrial order departs significantly from the standards prescribed by the rules of civil procedure and places a party at an unwarranted disadvantage in litigating the merits of his case.
Fact that trial court’s denial of motion to compel discovery would preclude party from obtaining information vital to his claims for relief justified exercise by the Supreme Court of original jurisdiction.
307Ak15Discovering truth, narrowing issues, and eliminating surprise
Purposes of pretrial discovery include elimination of surprise at trial, discovery of relevant evidence, simplification of issues, and promotion of expeditious settlement of cases. Rules Civ.Proc., Rules 26, 26(b)(1).
Rule providing for a qualified immunity from discovery for materials prepared in anticipation of litigation or for trial draws no distinction between trial preparation materials compiled by an attorney and those prepared by some other agent of a party; significance of documents, reports and statements being prepared by or under the direction of an attorney, rather than a nonattorney agent of a party, is that attorney’s participation is some indication that the materials were prepared in anticipation of litigation or for trial. Rules Civ.Proc., Rule 26(b)(3).
Rule providing qualified immunity from discovery for materials prepared in anticipation of litigation or for trial is not intended to protect from general discovery materials prepared in the ordinary course of business. Rules Civ.Proc., Rule 26(b)(3).
It must be presumed that reports and witness’ statements compiled by or on behalf of insurer in investigating claims made by an insured against the company or by some other party against an insured are ordinary business records as distinguished from trial preparation materials, for purposes of pretrial discovery, but under appropriate circumstances an insurer’s investigation of a claim may shift from ordinary business activity to conduct “in anticipation of litigation” within the qualified immunity from discovery for materials prepared in anticipation of litigation or for trial. Rules Civ.Proc., Rule 26(b)(3).
Document may be prepared “in anticipation of litigation” so as to be within qualified immunity from discovery prior to actual commencement of litigation, but commencement of litigation is not sufficient by itself to confer qualified immunity on document thereafter prepared; general standard is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation. Rules Civ.Proc., Rule 26(b)(3).
Insurance company defending a claim and asserting that its reports and witness’ statements are trial preparation materials within qualified immunity from discovery has burden of demonstrating that document was prepared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the claim or a lawsuit had already been filed. Rules Civ.Proc., Rule 26(b)(3).
Showing by insurer that reports and statements were compiled by or under direction of its legal counsel for use in specific litigation about to be filed or for use in an upcoming trial would be conclusive evidence that documents are trial preparation materials within qualified immunity from discovery, but showing that a claims adjuster, or even a lawyer not acting as legal counselor for the insurer, conducted an investigation of a claim during which he compiled various reports and statements would not be sufficient by itself to overcome the presumption of an ordinary business activity.
In absence of showing by fire insurer that investigative reports and witnesses’ statements were prepared in anticipation of litigation or for trial, trial court had to presume that such documents were prepared in the ordinary course of business and therefore not subject to the special discovery requirements for trial preparation materials, but even if insurer demonstrated that the documents did constitute trial preparation materials, insured suing insurer for failure to pay claim could obtain discovery, except for mental impressions, conclusions, opinions or legal theories, upon showing of substantial need for materials in the preparation of his case and inability without undue hardship to obtain the substantial equivalent of the requested information by other means. Rules Civ.Proc., Rules 26, 26(b)(3).
*1374 Henry B. Eastland, P. C., Colorado Springs, for petitioner.
Kane, Donley & Wills, Jerry Alan Donley, Colorado Springs, for respondents.
In this original proceeding we are asked to determine whether investigative reports and witnesses’ statements compiled by an insurance adjuster in the course of investigating and attempting to settle a fire loss with an insured are discoverable in an action by the insured against an insurance company for failing to pay the fire loss claim. The respondent court held that such information was privileged and therefore not discoverable. The petitioner-insured, Michael Dennis Hawkins, thereafter commenced an original proceeding in this court. We issued a rule to show cause and now make the rule absolute.
A brief recitation of the facts will place the issue in focus. The petitioner is an insured under a fire insurance policy on his home in Teller County, Colorado. The house and contents were destroyed by fire on February 16, 1981, and the petitioner filed a loss claim with MFA Mutual Insurance Company (MFA) for the full amount of coverage on the dwelling, the unscheduled personal property, and also for additional living expenses.1 MFA assigned a claims adjuster to investigate the loss and to attempt to settle the claim. During the ensuing investigation the adjuster discussed with and took statements from various witnesses concerning the acquisition of insurance on the home, the origin of the fire, and the accuracy of the petitioner’s proof of loss filed with the company. MFA refused to pay the petitioner’s claim and the petitioner sued the company for breach of the insuring agreement, bad faith in refusing to pay his claim, and outrageous conduct.
It appears from MFA’s answers to interrogatories that the fire insurance was procured in the petitioner’s name by the former owner who held a deed of trust on the property.
In the course of the pending litigation the petitioner served interrogatories on MFA requesting, inter alia, the notes and investigative reports of the adjuster regarding his interviews with several named individuals as well as any statements taken from these persons. On the advice of counsel MFA *1375 refused to supply the requested information. The petitioner filed a motion to compel discovery under C.R.C.P. 37. The respondent court denied the petitioner’s motion, ruling that the interrogatories sought “critical and privileged material between the insurance company and the insurance company’s adjuster” and, therefore, such information was not discoverable. Although the respondent court did not particularize the nature of the privilege on which it relied in denying the petitioner’s motion to compel, it is apparent that the only conceivable basis for the court’s denial of discovery was the work product doctrine. We conclude that the respondent court abused its discretion in its summary denial of the petitioner’s motion to compel discovery on the basis of the work product doctrine.
 The general contours of discovery are outlined in C.R.C.P. 26. Rule 26(b)(1) authorizes the discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party....” The information sought need not be admissible at trial and is discoverable so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” C.R.C.P. 26(b)(1). The purposes of pretrial discovery include the elimination of surprise at trial, the discovery of relevant evidence, the simplification of issues, and the promotion of expeditious settlement of cases. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). In keeping with these purposes we have consistently adhered to certain basic principles in resolving discovery disputes:
“First, the rules should be construed liberally to effectuate the full extent of their truth-seeking purpose.... Second, in close cases, the balance must be struck in favor of allowing discovery.... Third, the party opposing discovery bears the burden of showing ‘good cause’ that he is entitled to a protective order ‘which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ ” Cameron v. District Court, supra, 193 Colo. at 290, 565 P.2d at 925-29.
In order to determine whether the respondent court properly applied the work product doctrine to the petitioner’s interrogatories served upon MFA, we briefly examine the development of the doctrine since it was first enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman the Court held that “written statements, private memoranda and personal recollections prepared by an adverse party’s counsel in the course of his legal duties” are not discoverable in the absence of a showing of necessity or justification.2 In the wake of Hickman conflicting *1376 views developed over (1) whether discovery of trial preparation materials required only a showing of relevancy and lack of privilege, or an additional showing of necessity, (2) whether the work product doctrine extends beyond work actually performed by lawyers, and (3) what relationship, if any, existed between the “good cause” requirement of Rule 34 and the “necessity or justification” of the work product doctrine. Notes of Advisory Committee on 1970 Amendments to Federal Rules of Civil Procedure (Advisory Committee Notes), 48 F.R.D. 487, 499-500 (1970).
In Hickman the plaintiff sued certain tugboat owners to recover damages for the death of a seaman, who along with several other crew members had been drowned in the sinking of the tug. The owners, shortly after the sinking, had employed a law firm to defend against potential suits by representatives of the deceased crew members. The plaintiff served numerous interrogatories on the defendant owners, including one inquiry whether any statements of crew members were taken in connection with the accident and requesting copies of any written statements and a detailed summary of any oral statements or reports. In its opinion the Supreme Court disregarded the procedural irregularity involved in seeking discovery by interrogatory under Fed.R.Civ.P. 33 rather than a request for production under Fed.R.Civ.P. 34. The Court considered the basic question to be “whether any of those devices may be used to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” 329 U.S. at 505, 67 S.Ct. at 391, 91 L.Ed. at 459. It held that the information was not discoverable because the plaintiff had failed to make a proper showing “of the necessity for the production of any of this material or any demonstration that denial of production would cause undue hardship or injustice.” 329 U.S. at 509, 67 S.Ct. at 393, 91 L.Ed. at 461. However, the Court pointed out that
“(w)here relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.... But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to the orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted.” 329 U.S. at 511-12, 67 S.Ct. at 394, 91 L.Ed. at 462-63.
The Court’s reference to “the rules as now constituted” was directed to the then existing Rule 34 which required a showing of good cause for a court order directing another party to produce documents. The “good cause” requirement of Rule 34 was deleted in the 1970 amendments to the Federal Rules of Civil Procedure and no such requirement exists in C.R.C.P. 34.
Against a backdrop of varied judicial interpretations,3 the United States Supreme Court in 1970 promulgated Fed.R.Civ.P. 26(b) as part of a major revision calculated to integrate into one rule the standards regulating the scope of pretrial discovery. Advisory Committee Notes, supra at 490. C.R.C.P. 26 parallels Fed.R.Civ.P. 26 and became effective April 1, 1970, shortly after the United States Supreme Court approved the federal counterpart. Rule 26(b) (3) provides in pertinent part:
“(A) party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
Rule 26(b)(3) broadens the scope of discovery to include matters formerly protected by some courts under the work product doctrine. Materials prepared “in anticipation of litigation or for trial” enjoy a qualified immunity from discovery in that they are discoverable only upon a showing by the party seeking discovery of a substantial need for such materials in the preparation of his case and an inability without undue hardship to obtain their substantial equivalent by other means. C.R.C.P. 26(b)(3), like Fed.R.Civ.P. 26(b)(3), draws no distinction between trial preparation materials *1377 compiled by an attorney and those prepared by some other agent of a party.4 However, as the rule makes clear, the court in ordering the discovery of trial preparation materials must protect the “mental impressions, conclusions, opinions, or legal theories” of the attorney or other representative of the party. Documents and other tangible things not prepared “in anticipation of litigation or for trial” are discoverable so long as they appear “reasonably calculated to lead to the discovery of admissible evidence.” C.R.C.P. 26(b) (1).5
“In giving nonlawyers equal status with lawyers for purposes of ‘anticipation of litigation,’ it was not the Committee’s goal to widen or narrow the scope of the basic ‘work product’ doctrine. Rather, the goal was ‘to require a showing of relevancy and need for the production of trial preparation materials, whether prepared by an attorney or by the party or his agent.’ 4 J. Moore, Federal Practice P 26.64(3) (1975 supp.) p. 50. See 8 Wright & Miller, Federal Practice and Procedure: Civil s 2024, pp. 196-199 (1970).”
The significance of documents, reports and statements being prepared by or under the direction of an attorney, rather than a nonattorney agent of a party, is that the attorney’s participation is some indication that the materials were prepared in anticipation of litigation or for trial.
In Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the corporation’s general counsel had been informed of questionable payments made by one of the corporation’s foreign subsidiaries to foreign government officials and he then began an internal investigation of the matter, including the sending of questionnaires to foreign managers and the conducting of interviews with corporate officers and employees. The Internal Revenue Service issued a summons pursuant to 26 U.S.C. s 7602 demanding production of the questionnaires and counsel’s notes on the interviews. The corporation declined to produce the material sought, asserting the attorney-client privilege and the work product doctrine. The Supreme Court held that the general counsel’s notes and memoranda based on oral statements of employees interviewed by the attorney, to the extent not already protected by the attorney-client privilege, were protected from disclosure by the work product doctrine and that the magistrate, in ordering enforcement of the IRS summons, had incorrectly applied the “substantial need” and “without undue hardship” standard of Rule 26(b)(3). After noting that “(f)orcing an attorney to disclose notes and memoranda of witnesses’ oral statements is particularly disfavored because it tends to reveal the attorney’s mental processes,” 449 U.S. 383, 399, 101 S.Ct. 677, 687, 66 L.Ed.2d 584, 597, the Court concluded:
“The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys’ mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.
“While we are not prepared at this juncture to say that such material is always protected by the work-product rule, we think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure.” 449 U.S. at 401-402, 101 S.Ct. at 688-689, 66 L.Ed.2d at 599.
Rule 26(b)(3) is not intended to protect from general discovery materials prepared in the ordinary course of business. Advisory Committee Notes, supra, at 501. Courts generally have held that reports made and statements taken by an insurance adjuster for an insurance company in the normal course of investigating a claim are prepared in the regular course of the company’s business and, therefore, not in anticipation of litigation or for trial. The rationale for such an approach was cogently expressed in Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 373 (D.C.N.D.Ill.1972):
“If ... the law were as suggested by the plaintiff,6 i.e., that after a claim has *1378 arisen, litigation may be deemed a contingency and any document prepared after such a claim has arisen is prepared in anticipation of litigation as concerns Rule 26(b)(3) irrespective of whether an attorney in the role of counselor has been consulted, hardly any document authored by or for an agent of an insurance company could even be discoverable without the showing of substantial need and undue hardship required by subsection (b)(3) of Rule 26. An insurance company by the nature of its business is not called into action until one of its insured has suffered some form of injury and has a potential claim against some other party and/or the insurer itself. At this point, the insurer must conduct a review of the factual data underlying the claim, presumably through the talents of agents or employees who summarize the data for middle-or upper-management, the latter deciding whether to resist the claim, to reimburse the insured and seek subrogation of the insured’s claim against the third party, or to reimburse the insured and forget about the claim thereafter. The logical absurdity of the plaintiff’s position is that, under its theory, the amendments to the discovery rules which were believed to be a liberalization of the scope of discovery would be a foreclosure of discovery of almost all internal documents of insurance companies relating to the claims of insureds. We do not believe that Rule 26(b)(3) was designed to so insulate insurance companies merely because they always deal with potential claims. If this were true, they would be relieved of a substantial portion of the obligations of discovery imposed on parties generally that are designed to insure that the fact finding process does not become reduced to gamesmanship that rewards parties for hiding or obscuring potentially significant facts.”
In Thomas Organ Co., the plaintiff filed a suit in admiralty to recover damages for a cargo loss. The defendant ocean carriers contended that the loss resulted from the plaintiff’s improper design and packing of the goods prior to shipment and the improper handling of them after they left the defendant’s custody. The defendant sought production of two documents written by a marine surveyor hired by the plaintiff’s insurer who surveyed the damaged goods shortly after their arrival. The plaintiff refused to produce the documents, contending that they were prepared “in anticipation of litigation” as contemplated by Fed.R.Civ.P. 26(b)(3).
 Because a substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured, it must be presumed that such investigations are part of the normal business activity of the company and that reports and witness’ statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials. See, e.g., Thomas Organ Co. v. Jadranska Slobodna Plovidba, supra; McDougall v. Dunn, supra; Atlanta Coca-Cola Bottling Co. v. Transamerica Insurance Co., supra; Henry Enterprises, Inc. v. Smith, supra. This is not to say, however, that under appropriate circumstances an insurance company’s investigation of a claim may not shift from an ordinary business activity to conduct “in anticipation of litigation”. Admittedly, there is no bright line which will mark the division between these two types of activities in all cases. On the one hand a document may be prepared “in anticipation of litigation” prior to the actual *1379 commencement of litigation and, on the other, the commencement of litigation is not sufficient by itself to confer a qualified immunity from discovery on a document thereafter prepared. The general standard to be applied is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation. See generally 8 C. Wright and A. Miller, Federal Practice and Procedure s 2024 (1970).
 In the case of an insurance company defending a claim and asserting that its reports and witness’ statements are trial preparation materials under C.R.C.P. 26(b)(3), the insurance company has the burden of demonstrating that the document was prepared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the claim or a lawsuit had already been filed. Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga.1974); Westhemeco Limited v. New Hampshire Insurance Co., supra; Spaulding v. Denton, supra; Hopkins v. Chesapeake Utilities Corp., 300 A.2d 12 (Del.Super.1972). Thus, a showing by the insurance company that reports and statements were compiled by or under the direction of the insured’s legal counsel for use in specific litigation about to be filed or for use in an upcoming trial would be conclusive evidence that these documents are trial preparation materials. Conversely, a showing that a claims adjuster, or even a lawyer not acting as a legal counselor for the insurer, conducted an investigation of a claim, during which he compiled various reports and statements, would not be sufficient by itself to overcome the presumption of an ordinary business activity. In the absence of more formidable evidence such documents would be presumed to be ordinary business records and, as such, discoverable without any showing of substantial need or undue hardship. The only requirement for discovery of ordinary business records is that they be reasonably calculated to lead to the discovery of admissible evidence. C.R.C.P. 26(b)(1).
 In this case the record indicates that petitioner sought discovery of the investigative reports and witnesses’ statements compiled by an insurance adjuster who was acting under the general directions of MFA in investigating a fire loss shortly after its occurrence and was attempting to settle the claim with the insured.7 Such documents, if not essential to the petitioner’s claim against MFA for failure to pay the full amount of his loss, appear at the very least to be reasonably calculated to lead to the discovery of admissible evidence. The respondent court in denying the petitioner’s motion to compel discovery apparently believed that the information requested was protected from discovery under the work product doctrine. However, there is nothing in the pleadings and documents filed with this court demonstrating that the documents enjoy a qualified immunity from discovery under C.R.C.P. 26(b)(3) by virtue of their character as trial preparation materials.
The petitioner’s request for discovery was in the form of interrogatories under C.R.C.P. 33 with an additional request contained therein that MFA attach to its answers any written documentation, notes or reports relating to the adjuster’s contact with certain persons allegedly having information about the petitioner’s claim. MFA does not question the form of discovery employed by the petitioner and has raised no objection to it on that basis. Rule 34 permits a party to serve on another party a request to produce designated documents containing matters within the scope of Rule 26(b) and which are in possession, custody, or control of the party upon whom the request is served. In view of the 1970 amendments to the rules, which establish identical standards for discovery under C.R.C.P. 33 and 34, we believe the petitioner’s use of interrogatories with a request within the interrogatories for production of documents was not improper.
 It is MFA’s burden to establish that the investigative reports and witnesses’ statements were prepared “in anticipation *1380 of litigation or for trial” within the meaning of C.R.C.P. 26(b)(3). E.g., Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977); Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). In the absence of such a showing the respondent court must presume that such documents were prepared in the ordinary course of MFA’s business and, therefore, are not subject to the special discovery requirements of C.R.C.P. 26(b)(3). Even if MFA demonstrates that the requested documents constitute trial preparation materials under Rule 26(b)(3), the petitioner nevertheless may obtain discovery upon a showing of substantial need of the materials in the preparation of his case and an inability without undue hardship to obtain the substantial equivalent of the requested information by other means.8
If the respondent court orders discovery of trial preparation materials, it must protect against disclosure the mental impressions, conclusions, opinions, or legal theories of MFA’s attorney or other representative. C.R.C.P. 26(b)(3).
Considering the obvious nexus between the requested information and the petitioner’s claims against MFA, along with the absence of any showing by MFA of a valid basis for refusal to make discovery, the respondent court’s denial of discovery on the apparent basis of the work product doctrine reflects a misapprehension of the nature and scope of that doctrine. Because the court did not apply the appropriate standards for discovery under C.R.C.P. 26, the rule to show cause is made absolute and the respondent court is directed to reconsider the petitioner’s motion to compel discovery in accordance with the views expressed herein.