17 Am. J. Trial Advoc. 581 (1993-1994)
Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary's Wits

handle is hein.journals/amjtrad17 and id is 589 raw text is: Discovering Trial Consultant
Work Product: A New Way to Borrow
an Adversary's Wits?
Stanley D. Davist
Thomas D. Beiseckertt
I. Introduction
Trial consultants are becoming integral to the civil litigation process.
Since the mid-1960s, when social science research techniques were first
applied to jury selection in the political trials of that era,1 the tasks
of trial consultants have proliferated. Trial lawyers use community
attitude research to justify motions for venue changes, to frame jury
selection strategies, and to develop case theories. Focus groups and
mock jury trials pretest case theories and juror reactions to case issues
and witnesses. Communication specialists help prepare witnesses for
deposition and trial testimony. Social science and litigation may not
yet be married, but they are dating seriously.
The expanding role of trial consultants in the trial process has fostered
increased interest in whether the work product of the trial consultant-the
research data and conclusions drawn from therm-is properly discoverable
by the other side. Disputes arising from one party's attempt to get
its hands on trial consultant material of an adversary seem to occur with
increasing frequency.2 Currently, the principal source of information
t A.B. (1969), University of North Carolina; J.D. (1976), University of North Carolina.
This author is a shareholder in the Kansas City, Missouri law firm of Stinson, Mag & Fizzell,
tt A.B. (1963), University of Kansas; Ph.D. (1968), University of Wisconsin. This author
is an Associate Professor of Communication Studies at the University of Kansas. The authors
gratefully acknowledge the research assistance of Sheree D. Hess, Patrick Hamilton, and CJ.
Rieg in the preparation of this Article.
1. See Jay Schulman et al., Recipe for a Jury, in IN THE JURY Box: CONTROVERSIES
IN THE COURTROOM 13 (Lawrence S. Wrightsman et al. eds., 1987).
2. Growing concern about discovery requests for trial consultant work product and
recommendations prompted a session titled Issues in Confidentiality at the American Society
of Trial Consultants annual conference in Chicago, Illinois, on October 6, 1990. The issue
continues to be a topic of discussion at subsequent conferences.

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