It may come as a surprise to some of you to learn that unlike how trials are portrayed on TV, in fact, trials are not about surprising the other side. The “Perry Mason” or “Matlock” moment when an attorney pulls out a secret document to the amazement of the judge, jury, and spectators usually does not happen and is not even allowed.
This is because there is a complex process that happens before trial called discovery. This is when both sides are compelled to provide all the evidence they intend to admit at trial if they are asked for it by the other side.
How to ask for the other side’s evidence and what to ask for is another topic for another day. But what you may not know is that you do not have to turn over every piece of information you have even if you are asked for it. Some information is protected, or considered privileged information, while some information you think should be privileged actually is not.
Attorney-Client Privilege
The general rule is that anything you tell your attorneys once you have an attorney-client relationship, is privileged. Nobody can ask you what you told your attorney or what he or she told you and your attorney can never divulge voluntarily what you have said.
What many people forget is that third parties who may hear what you told your attorney are not protected by the privilege. For example, if you speak on the phone with your attorney and a co-worker is in the room with you and hears what you are telling your attorney, that co-worker has no attorney-client privilege and can be compelled to tell the other side what you told your attorney.
This is common with in-office consultations. Many people want to meet with their attorney with a trusted friend at their side. That friend can be compelled to say what he or she heard you tell your attorney. This is why injury attorneys often will only want to meet with the potential clients themselves.
Additionally, handing something to your attorney does not make it confidential. In other words, let’s assume that you have a hospital record. You give that to your attorney. The hospital record was not an attorney-client privileged document before you gave it to your attorney, so it does not transform into one afterwards. Generally, if something is not privileged, it will not become privileged just by giving it to the lawyer.
Medical Records
Medical records carry their own protections under federal HIPAA laws, which make all medical records private. If you file a lawsuit alleging injury, you have put your medical health “at issue,” which acts as a waiver of the privacy that you would normally have in your medical records.
To some extent this makes sense. You can not say you are injured but refuse to give any medical records showing how badly you are injured or which allow the other side to evaluate your injuries.
Some medical records may still keep their protections even if your health is an issue in your case. Records of psychological treatment (if your mental health is not an issue in the case), addiction, and other sensitive medical areas may be shielded if they have nothing to do with your case at all.
Work Product
Work product is a common area in which attorneys will object to providing information. Work product is anything that you do, say, or create in the process of preparing for litigation. So, for example, if you give your attorney a written list of your injuries that you created, that may be work product. If your attorney creates a list of questions he wants to ask the defense expert, or a chart of the strengths and weaknesses of your case, those may be work product.
However, work product must be given to the other side (again, if they ask for it), if you intend to use the information at trial. So, for example, surveillance video is normally work product. However, if an attorney intended to show the jury the video, it would have to be provided to the other side before trial.
If something is work product and the attorney will not be using it at trial, it can not be compelled to be shown to the other side, but its existence, as well as the circumstances surrounding the potential evidence could be divulged. For example, with our surveillance video example, even if the video is work product and thus privileged, the party could still be compelled to tell the other side that they have a video, when it was taken, and who (what company) took it.
Spousal Privilege
Florida recognizes that we tell our spouses our most private thoughts and feelings and that this is a practice that should be encouraged. For this reason, Florida also has a husband and wife communication privilege. A spouse cannot be compelled to divulge what the other spouse told him or her.
The privilege only applies when the parties are legally married, but it does survive divorce. Additionally, it only applies to words, not observations. A spouse could be compelled to say she saw her husband lift heavy items at home after an accident, because that is just an observation.
Like all other privileges, it can be waived if the parties voluntarily disclose something that is overheard by others or not kept private. This means that conversations in public places could lose privileged status.
This is not an exhaustive list of privileges—there are therapist privileges, trade secret privileges, constitutional privileges, and even those that are based on contract (for example, a nondisclosure agreement which may bar disclosure). You should take this information as a reminder that your privileges are valuable and can protect you, but can also be lost if information is not protected and if objections to their disclosure are not made.
Make sure the other side only gets the evidence to which they are legally entitled and that your conversations and information are protected during your injury trial. Contact Brill & Rinaldi today for a free consultation to discuss your injuries if you are in an accident.