I. Introduction

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

I. Introduction

Assume that you are representing a department store chain in a case in which off-duty police officers working as security guards allegedly engaged in racial profiling and used excessive force in falsely arresting minority customers. You now are deposing the plaintiff's expert witness on security practices. You have done well so far, establishing that he has never been employed by a company that owned or operated retail stores, his book on industrial security was published by a vanity press, and he did not read several key documents before forming his opinions. You have still more, though. The expert formerly was a state police captain, and he has testified that he left public service for private industry in pursuit of a higher salary and new professional challenges. You have reliable information that the state police forced him to resign after subordinates alleged that he sexually harassed them. Confident that you have caught him in a lie, you inquire into this sensitive aspect of his career. The plaintiff's attorney instructs the expert not to answer, calling your questions irrelevant and scandalous. "Look," you respond, "your so-called expert is a liar. And you intend to have him testify that he is a former state trooper, so I intend to establish that the state police threw him out because he was a sexual predator." The plaintiff's lawyer and expert witness bristle at your "sexual predator" reference and storm out of the conference room, threatening to sue you for defamation. Of course, if the plaintiff's lawyer conducts even limited legal research, there will be no lawsuit, because even if your statement expressed an alleged fact rather than your opinion, and is ostensibly actionable on that basis, your opponent should quickly conclude that it still is absolutely privileged.¹

Alternatively, consider a case in which you are defending an insurance company against allegations that it breached its contract and is guilty of bad faith because it has not paid the disability benefits the plaintiff claims are owed her as a result of a back injury suffered in a workplace accident. The insurer's claims staff reasonably believes that the plaintiff is a fraud. You hire a private investigator to develop the insurer's defense. The investigator interviews the plaintiff's friends and co-workers who are familiar with her allegations and who are thus potentially fact witnesses in the case. In those interviews, the investigator asserts that the plaintiff could not have been injured as she alleges; explains why she is...