Not-So-Privileged Information

By — on / Dispute Resolution

The law of attorney-client privilege protects certain communications on the assumption that clients will reveal critical information to their attorneys only if they know such disclosures will not harm them in court. Despite the inadmissibility of such evidence, judges can have difficulty disregarding privileged information that sheds light on a case.

In a recent study, Andrew Wistrich, Jeffrey Rachlinski, and Chris Guthrie informed a group of judges that they were presiding over a hypothetical contract dispute in which a freelance consultant argued that a movie production company had inappropriately denied him producer credit on a film.

The parties’ written contract did not address producer credit, but it appeared they might have discussed this issue during contract negotiations. We asked some of the judges (our control group) to rule for either the plaintiff or the defendant. We asked the rest of the judges to do the same, but first we informed them that the defendant sought to introduce evidence showing that the plaintiff had acknowledged to his business attorney that he had not asked for producer credit – a conversation that the plaintiff argued was protected by attorney client privilege.

We asked these judges to rule on this motion before assessing liability.

We compared the responses of the control-group judges to the judges in the other group who ruled the evidence inadmissible. Among control-group judges, 55.6% ruled for the plaintiff; by contrast, only 29.2 of those who found the damning evidence inadmissible ruled for the plaintiff. The privileged information appears to have had a substantial impact on these judges’ assessments of liability.

The next time you find yourself in court, it’s worth remembering that inadmissible evidence can influence the judge or the jury deciding your case.

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