I. OBJECTING TO THE ORAL TESTIMONY OF WITNESSES

A. COMPETENCE AND RELIABILITY

1. General Rule

The Louisiana Code of Evidence Article 601 sets forth the general rule concerning the competency of witnesses. "Every person of proper understanding is competent to be a witness except as otherwise provided by legislation." La. Code Evid. art. 601. For a fuller understanding of the general rule of competency, attention must be directed to two clauses.

2. "Proper Understanding"

Article 601 codified the long-standing general test of witness competency as articulated by the Louisiana Supreme Court in State v. Thompson, 364 So.2d 908 (La. 1978). A witness must have "proper understanding."

3. "Except as Otherwise Provided by Legislation"

This general rule, as articulated by Article 601, was not intended to affect substantive legislation which, for policy reasons independent of the Code of Evidence, excludes certain types of testimony.

a. The "Deadman Statute"

La. R.S. 13:3721, et seq., prevents testimony concerning the debts of a decedent, and is intended to protect the estate from stale claims which could have been refuted if the decedent were still living. See Succession of Moore, 96-1268 (La. App. 1st Cir. 6/20/97); 696 So.2d 1040. Deadman's statute issues are uncommon, but should nonetheless not be overlooked when the lawsuit involves a deceased party.

b. Parole Evidence The general rule does not affect the Civil Code Article 1832 prohibition of parole evidence and its bar against competent witnesses statutorily deemed incompetent to give oral testimony which varies the content or understanding of a written agreement. Again, issues of parole evidence should be thoroughly researched particularly when the case turns on the interpretation of a contract.

c. Judges and Jurors

Louisiana Code of Evidence Articles 605 and 606 disqualify judges and jurors from testifying in a trial in which the judge presides or the witness sits as a juror.

4. Considerations in Determining Witness Competency

a. Age

Because Louisiana applies the "proper understanding" test, there is no minimum, or maximum age of witness competency. The hallmark is whether the witness knows right from wrong or "truth from falsehoods." State v. Allen, 26, 547 (La. App. 2nd Cir. 12/7/94).

b. Children

As the court instructs in State v. Troulliet, 94-183 (La. App. 5th Cir. 9/14/95), 643 So.2d 1267, it is the child's ability to understand, and not the child's age which makes the child competent to testify. In State in the Interest of D.M., 97-0628 (La. App. 1st Cir. 11/7/97) 704 So.2d 786, the court added that the test for a child's competence should include not only the child's understanding, but also the child's demeanor on the witness stand. In so doing, the court found that a six-year old was competent to testify.

"Coached" Responses"

Whether a child witness has been coached is a factor to consider in determining the child's demeanor and competency. See State v. Atkins, 97-1278 (La. App. 4th Cir. 5/27/98), 713 So.2d 1168.

c. Mentally Disabled

Courts apply a similar test for mentally retarded witnesses who have the mental age of a child. State v. Burleson, 516 So.2d 1159 (La. App. 4th Cir. 1987). See also State v. Atkins, 97-1278 (La. App. 4th Cir. 5/27/98), 713 So.2d 1168 (holding that a sixteen-year old special-education student who had difficulty in communicating, nonetheless was competent to testify because the witness knew right from wrong). This test may also be applied in the case of brain injury or disease. If a witness's memory is affected by injury or disease, then the competency of the witness should be questioned.

d. Senility

While the age of a witness is not a factor to be considered in objecting to competence of the witness to testify, the declining mental condition of the witness may be fertile ground for such a challenge. Again, the threshold test is whether the witness is capable of understanding the truth. When approached with a seemingly senile witness, it may be necessary to require the court to first gauge the competency of the witness. The failure to do so may have negative consequences. For example, in State v. McDowell, 427 So.2d 1346 (La. App. 2nd Cir. 1983), the failure to call a senile seventy-one-year old victim created a presumption against the prosecution which struck at the heart of the prosecution's burden of proof.

5. Reliability

While it is clear that an incompetent witness is inherently unreliable, even competent witnesses can give unreliable, and therefore, objectionable, testimony. Louisiana Code of Evidence Article 602 prohibits a witness from testifying as to the facts of the case without personal knowledge of the matter. See La. Code Evid. art. 602. "Personal knowledge" has been defined as information acquired by the use of the senses of the witness. See Hidalgo v. General Fire and Casualty Co., 254 So.2d 493 (La. App. 3rd Cir. 1971); State v. Tate, 25,765 (La. App 2nd Cir. 2/23/94), 632 So.2d 1213.

6. Factors Affecting Personal Knowledge

Because personal knowledge has been defined as information acquired by use of the witness's senses, inquiring into the sensory capabilities of the witness may create a basis to object to the testimony as unreliable.

a. Age

While the age of a witness may not be used as a bar to testimony, age may be a factor to consider in challenging the reliability of the testimony. As previously stated, whether a child witness has been coached is also a factor in gauging the reliability of the testimony.

b. Demeanor

The attitude of the witness and the manner the witness presents to the jury can trigger questions that may challenge the reliability of the witness's testimony. Does the witness appear comfortable and relaxed or apprehensive? Is the witness giving subtle clues that suggest bias? Taking this example to extreme, consider the witness who waves to one of the parties and gives a "thumbs up" before testifying.

c. Physical Limitations

Each of the witness's senses may be called into question.

i. Vision

Can a witness with poor vision or thick glasses be counted on to give reliable testimony regarding the details of a motor vehicle collision that happens across the street? Would it make a difference if the accident occurred fifteen feet in front of the witness or down the block?

ii. Hearing

Can a witness with poor hearing or a hearing aid give reliable testimony concerning the subtleties of a pin drop or whether a driver sounded his horn?

iii. Poor Memory

The forgetful witness poses additional problems. If the witness no longer remembers, and does not have a refreshed recollection, then, the testimony may be speculation and subject to exclusion under Article 602.

iv. Intoxication/Impairment

What if the eye-witness to the accident was drunk at the time? Would the same testimony be more reliable if the witness were instead, just sleepy?

B. OBJECTIONS DURING THE EXAMINATION OF A WITNESS

1. Lack of Predicate

Testimony which assumes facts not in evidence is objectionable.

2. Failure to Lay a Proper Foundation

Both the lay-witness and expert-witness must establish a factual basis for their testimony. Without such a factual basis, the jury cannot consider the reliability of the testimony. A foundation for the testimony is critical for the expert, because it is upon this factual basis that the expert opinion is drawn Additionally, this objection is useful in objection to exhibits. Every exhibit requires that a foundation be established before it can be admitted into evidence. Witnesses may be called upon to attempt to introduce exhibits into evidence. If the witness has not established the groundwork necessary, an objection can exclude the exhibit, or at least preserve for appeal, the error in improperly allowing and considering the exhibit.

3. Calls for a Conclusion

A conclusion is an inference drawn from the facts. The jury alone should reach the conclusions and it is inappropriate to ask a witness to draw such conclusions. Likewise, if a witness volunteers a conclusion, the testimony is objectionable. An example of an objectionable question would be, "Did the repairman perform his work competently?"

4. Calls for Expert Testimony

When a question seeks knowledge of a highly specialized nature, the question calls for expert testimony. Lay witnesses are simply not competent to render such testimony.

5. Calls for Opinion

Opinion testimony is almost exclusively reserved for experts and often reflects the highly specialized knowledge required. A lay witness may only give opinions which are based upon the witness's perception of the event. Common examples of lay opinions include speed, time, and distance.

6. Calls for a Narrative

A question which elicits a long narrative answer is objectionable because the witness is free to include otherwise inadmissible evidence and opposing counsel cannot effectively object before the inadmissable evidence is before the jury. Thus, objecting because the question calls for a narrative forces the questioner to ask a series of discreet questions, each of which allows the opposing counsel the opportunity to consider and object when appropriate. Examples of questions which call for narrative include: "Please tell the jury everything that happened." or "Please describe everything that you did that day." If the witness appears disorganized or is rambling, this objection may help restore the examiner's control over the witness.

7. Cumulative

The testimony of a witness, when added to a line of previous witnesses who all state the same fact, is cumulative and objectionable. Often cumulative witnesses are used to establish the reputation of a party.

8. Argumentative This objection is directed to a particular question by the examiner and not necessarily the witness's response. With such a question, the examiner states a conclusion and seeks the witness's approval. Because the examiner, in asking this question, attempts to speak to the jury instead of eliciting a fact, it is objectionable.

C. THE DEFENSIVE, ELUSIVE, OR HOSTILE WITNESS

1. Non-Responsiveness

An answer that does not directly respond to the question is objectionable. Moreover, if the question goes beyond what was asked, the added commentary is also objectionable. Non-responsive witnesses come in many forms, ranging from an absolute refusal to answer to an eagerness to use each question to enter into a narrative. Most non-responsive witnesses can be handled by reasserting that an answer to the question is needed.

2. Request for the Witness to Answer the Question

This technique helps the questioner retain control over the difficult witness. By calmly and assertively requesting an answer, a wayward witness can be controlled. For more difficult witnesses, the examiner should turn to the judge for assistance. Even if the examiner is unsuccessful in obtaining a response from the witness, the manner in which the question is asked and restated provides the examiner with an opportunity to develop rapport with the jury at the expense of the witness's credibility.

3. Motion to Declare Witness Hostile on Direct

The examiner sometimes may have a problem with one of his own witnesses. The only option left to the examiner is to then ask the court to declare the witness hostile. In doing so, the examiner can then ask leading questions in order to complete the testimony.

D. TIPS ON HOW TO RESPOND TO COMMON OBJECTIONS TO ORAL TESTIMONY

An examiner should know what each witness's intended testimony should be. But the examiner should also prepare for any potential evidentiary challenges to the testimony in advance. Thus, when an exception is raised, the examiner is prepared with a response, or a strategy to preserve the witness's testimony in some form.

1. Relevance

In response to a relevancy objection a two-fold analysis should take place. First, the examiner must show how the intended testimony has some substance or impact to the case and second that the impact is not outweighed by any potential prejudice.

2. Leading

A leading question, or a question which suggests the answer can be easily corrected by rephrasing the question. For example, a leading question such as "Isn't it true that you saw a green light?" can be corrected to state "What was the color of the light when you approached the intersection?" When in doubt, remember a who, what, when, where or why question is generally not a leading question.

3. Hearsay

While hearsay is discussed separately, it is important to note that when faced with a hearsay objection, the examiner should respond with an exception to the general rule of hearsay which might apply. For example, the "excited utterance" exception might be useful to argue when the statement attempted to be admitted was made immediately after an accident. Another widely used exception is that the statement shows the declarant's state of mind or that the statement is relevant merely because it was said. If the examiner knows of no available exception, then the examiner should consider another approach to get the intended fact to the jury for consideration.

4. Failure to Lay a Proper Foundation

The examiner may cure this objection by going back and having the witness explain, through questioning, how the witness is in a position to testify to the facts elicited. Simply placing the witness at the scene and looking in the direction of the accident is sufficient to lay the foundation for what the witness saw. With exhibits, a more detailed foundation has to be established. In some instances, this objection allows the examiner to delve into more detail and further establish the reliability of the exhibit.

II. THE EXPERT WITNESSES

A. THE IMPACT OF DAUBERT AND ITS LEGACY

The admissibility of expert testimony is governed by Fed. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

1. The Daubert Decision Set a New Standard

The U.S. Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed 2d 469 (1992), interpreted Rule 702 and explicitly overruled the "general acceptance" test of Frye v. United States, 293 F.1013, 1014 (1923). The Frye test had been the dominant standard for admitting expert testimony for over 70 years and permitted expert opinion of a scientific technique that was "generally accepted" as reliable in the relevant scientific community. The problem with this standard was that over the years it had allowed "junk science" to enter the court room. In Daubert, the Supreme Court held that Rule 702 assigns to the district judge a "gatekeeping role" to ensure that scientific testimony is both reliable and relevant. Daubert, 509 U.S. at 597, 113 S.Ct. at 2799. This role requires the district judge to undertake a two-part analysis: The judge must first determine whether the proposed testimony is reliable, requiring an assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and, second, the judge must determine whether that reasoning or methodology can be properly applied to the acts in issue, i.e., whether it is relevant. Id. at 592-93, 113 S. Ct. at 2796.

In order to be reliable under Daubert, the subject of the testimony must be "scientific . . .knowledge." Id. at 590, 113 S.Ct. at 2795. Daubert set out four factors to aid in the determination of whether a methodology is reliable. They are:

(1) Whether the theory or technique has been tested;

(2) Whether the theory or technique has been subjected to peer review and publication;

(3) The known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and,

(4) Whether the theory or method has been generally accepted by the scientific community.

Id. at 509 U.S. 593-94, 113 S.Ct. at 2796-97. The Court noted the inquiry is a flexible one and that "many factors will bear on the inquiry" of whether methodology employed by experts is reliable and that the four factors stated are not a "definitive checklist or test." Id. at 409 U.S. 593, 113 S.Ct. at 2796. In essence, the focus must solely be on the principles and methodology - not the conclusions that they generate. Id at 509 U.S. 594, 113 S.Ct. at 2797.

In 1999, the Supreme Court made clear that the trial court's gatekeeping role applies to all expert testimony - not simply testimony of scientific experts. See Kumho Tire Co., Ltd. v. Carmichael, 119 Sup. Ct. 1167.

III. HEARSAY EVIDENCE

B. WHAT DETERMINES HEARSAY V. NON-HEARSAY

1. Hearsay, Defined

"Hearsay" is a statement other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.

a. Statement, defined

A "statement" is: 1. An oral or written assertion; or 2. Nonverbal conduct of a person, if it is intended by him as an assertion.

b. Declarant, defined

A "declarant" is a person who makes a statement.

2. Statements Which Are Not Hearsay

A statement is not hearsay if:

a. Prior Statement by Witness

(i) Declarant testifies at trial or hearing; and

(ii) Is subject to cross-examination concerning the statement; and

(iii) The statement is consistent with declarant's testimony; and is:

(a) One of initial complaint of sexual assault; or

(b) Offered to rebut an express or implied charge of recent fabrication or improper influence or motive; or

(c) One of identification of a person made after perceiving the person.

(d) The statement is inconsistent with declarant's testimony and was given at accused's preliminary examination or prior trial and the witness was subject to cross-examination by the accused.

b. Personal, Adoptive, and Authorized Admissions

The statement is offered against a party and is:

(i) His own statement (either in an individual or representative capacity); or

(ii) A statement which manifests his adoption or belief in its truth; or

(iii) A statement by a person authorized by the accused to make a statement concerning the subject.

c. Relational and Privity Admissions

(i) The statement is offered against a party and is:

(a) A statement by an agent or employee of the party:

(b) concerning a matter within the scope of his agency or employment; and

(c) made during the existence of the relationship.

(ii) A statement by a declarant while participating in a conspiracy to commit:

(a) a crime or civil wrong; and

(b) in furtherance of the objective of the conspiracy; and

(c) provided that a prima facie case of conspiracy is established.

(iii) A statement by a declarant when the liability, obligation, or duty of the party against whom it is offered is:

(a) derivatively based in whole or in part upon a liability, obligation, or duty of the declarant; or

(b) when the claim or right asserted by that party is barred or diminished by a breach or duty by the declarant; and

(c) when the statement would be admissible if offered against the declarant as a party in an action involving that liability, obligation, or breach of duty.

(iv) A statement by a declarant when a right, title, or interest in any property or claim asserted by the party against whom it is offered requires:

(a) a determination that a right, title, or interest exists or existed in the declarant at the time that the party now claims the declarant was the holder or the right, title, or interest; and

(b) when the statement would be admissible if offered against the declarant as a party in an action involving that right, title, or interest.

(v) A statement by a declarant offered against the party in an action for damages arising from the death of that declarant; or

(vi) A statement by a minor child offered against a party in an action to recover for:

(a) injury to that child; or

(b) against the person responsible for the child in an action to recover damages for losses caused by the child.

d. Things Said or Done (res gestae)

The statements are events speaking from themselves under the immediate pressure of the occurrence:

(i) Through the instructive, impulsive and spontaneous words and acts of the participants; and

(ii) Not the words of the participants when narrating the events; and

(iii) Which are necessary incidents of the criminal act, or immediate concomitants of it , or form in conjunction with it one continuous transaction.

e. Optical Disk Imaging System

"Optical disk imaging system" means:

(i) A storage system that utilizes nonerasable Write Once Read Many (WORM) optical storage technology to record information on an optical disk with the use of laser technology; and

(ii) That utilizes laser technology to retrieve and read previously stored information.

C. BLOCKING UNRELIABLE HEARSAY

1. Objections

Generally, hearsay evidence not objected to constitutes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive powers it might possess. See State v. Beach, 610 So. 2d 908 (La. App. 1st Cir. 1992).

b. Specificity

Objecting to remarks including hearsay but failing to specify the ground thereof vitiates the review of the objection. See State v. Green, 390 So. 2d 1253 (La. 1980).

VI. TYPES OF OBJECTIONS AT TRIAL- EXAMPLES OF SPECIAL PROBLEMS

A. MORE PREJUDICIAL THAN PROBATIVE

Evidence that is more prejudicial than probative is objectionable. See La. Code of Evid. art. R403. This type of objection is dependent on the facts of each case and must be independently evaluated to convince the court of the prejudicial impact of the proposed evidence and the wisdom of excluding it.

B. SPOLIATION OF EVIDENCE - A NEGATIVE PRESUMPTION WITHOUT REASONABLE EXPLANATION

Litigants are increasingly seen to bear a duty to preserve evidence for a just adjudication of the controversy. When evidence is not preserved it is known as "spoliation." See Davis V. Wal-Mart, 99-723 (LA. App. 5 Cir. 1/12/00), 751 So.2d 357 where the Court applied a negative presumption to the defendant because it failed to take photographs of an item that fell on the plaintiff's head failed to preserve the item or the shelf that it fell from as evidence. "Where a litigant fails to produce evidence available to him and he does not provide a reasonable explanation, the presumption is that evidence would have been unfavorable." Small v. Baloise Inc. of America, 753 So.2d 234 (La. App. 4th Cir. 1998) 96-2484.

C. ADMISSIBILITY OF SEATBELT USE

La. R.S. 32.295.1(E) states in pertinent part:

In any action to recover damages arising out of ownership, common maintenance, or operation of a motor vehicle, failure to wear a safety belt in violation of this Section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this Section shall not be admitted to mitigate damages.

The afore quoted statute has been questioned in automobile product liability suits. In Fedele v. Tujaque, 98-0843 (LA. App. 4th Cir. 4/15/98), 717 So.2d 244, the Fourth Circuit held that although La. R.S. 32:295.1(E) specifically prohibits the introduction of such evidence, it was not applicable in a product liability case. But see Wright v. La. Power, 33, 202 (La. App. 2nd Cir. 10/15/99), 752 So.2d 919, writ denied, 99-3232 (La. 12/17/99), 752 So.2d 858 that held the opposite. See also, Rougeau v. Hyundai, 99-1060 (La. App. 4th Cir. 10/20/99), 748 So.2d 39.

D. JUDGE'S ROLE TO WEIGH THE EVIDENCE, NOT INTERJECT HIMSELF IN THE MARSHALLING OF EVIDENCE.

In a construction defect case, the trial court visited the site prior to rendering judgment, during the visit the trial judge conducted tests on the mortar with a metal probe. In rendering its decision, the trial court based its findings in large part on what it observed and learned during the visit. The Third Circuit found that the trial court's visit constituted manifest error. "A trial court is usually not permitted to visit an accident site, or in this instance, a work site, to perform tests, make measurements, or make visual observations, and then rely on its findings in deciding the matter at issue." The trial court's role is restricted to receiving and weighing evidence, not marshalling the evidence.

E. REAL AND DEMONSTRATIVE EVIDENCE

An article or substance which is introduced as real evidence, must be sufficiently identified as the article or substance involved in the occurrence in question. Dubois v. State through Dept. of Public Safety, 466 So.2d 1381 (La. App. 3rd Cir. 1985). A proper foundation must be laid which connects the specimen and its source, to show that it was properly obtained by an authorized person, properly labeled and preserved, properly transported for analysis, and properly tested. Evans v. Olinde 609 So.2d 299 (La. App. 3rd Cir.), writ denied, 616 So.2d 697 (La. 1993).

Absent sufficient identification that an article or substance was properly obtained and preserved, the introducing party will have failed to establish a proper chain of custody and the evidence should be excluded. Reed v. Seacoast Products, Inc., 458 So.2d 971 (La. App. 3rd Cir. 1984). The federal courts have recognized that the question of whether a proponent of evidence has proven an adequate chain of custody is properly reserved to the trier of fact and accordingly goes to the weight of the evidence rather than its admissibility. Baltezone v. Concordia Parish Sheriff's Dept., 767 F.2d 202 (5th Cir. 1985), cert. denied, 474 U.S. 1065, 106 S. Ct. 817, 88 L.Ed.2d 790 (1986).

2. Best Evidence

The "best evidence" rule is now embedded in the Louisiana Code of Evidence and requires that originals be produced, absent proof they could not be located following a diligent effort. U.S. v. Edwards, 39 F.Supp. 2d 716 (M.D. La. 1999).

Code of Evidence articles 1002-1004 are pertinent to this issue and should be reviewed.

3. Demonstrative Evidence -- Duplicates, Models and Casts

A party may utilize an exemplar or replicate of an exhibit to illustrate an opinion or finding to the fact finder where there is evidence of an underlying basis of reliability and the evidence will not confuse or mislead the jury.

4. Hospital Records

La. Rev. Stat. 13:3714 permits certified hospital records to be admitted into evidence as follows:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator, or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.

Once a party has complied with §3714, the records are admissible. Aites v. State through Department of Transportation, 512 So.2d 865 (La. App. 3rd Cir.), writ denied, 514 So.2d 133 (La. 1987). The use of this statute alleviates the need of the health care provider or the custodian of his/her records to come to court to authenticate medical records.

F. ATTORNEY-CLIENT PRIVILEGE - CODE OF EVIDENCE ARTICLE 5O6

Code of Evidence Article 506 prohibits disclosure of communications between lawyers and their clients, which are made in confidence. The general rule as articulated by Article 506, states in pertinent part, "a client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written or otherwise, mainly for the purpose for facilitating the rendition of professional legal services to the client..." La. Code Evid. art. 506.

The elements required for the recognition of attorney-client privilege are: 1) the holder of the privilege is, or has sought to become a client; 2) the person to whom the communication was made is an attorney or a person acting on the attorney's behalf; 3) the communication was held in the confidence outside of the presence of strangers for the purpose of securing a legal opinion or legal services; and 4) the client has not waived the privilege. U.S. v. Edwards, 39 F.Supp. 2d 716 (MD La. 1999).

2. Who May Invoke the Privilege

Article 506 speaks in terms of the client controlling the privilege. However, competing claims may be made by persons claiming to be "the client." a. Corporations

When control of a corporation passes to new management, the authority to assert or waive the corporation's attorney-client privilege passes as well. Brown v. Car Ins. Co., 93-2372 (La. 4/11/94), 634 So.2d 1163.

b. Successions

Because the attorney-client privilege survives the death of the client, see Morris v. Cain's Executors, 1 So. 797 (La. 1887), the executor may invoke the privilege; however, the heirs to the succession may challenge that invocation. See In re: Norton, 351 So.2d 107 (La. 1977).

3. Exceptions

The attorney-client privilege is not absolute and is subject to a number of exceptions.

If a client communicates an intent to commit a crime, and the crime has not yet been committed, the attorney-client privilege does not extend to that communication. State v. Johns, 24 So.2d 462 (La. 1945). This rule encompasses not only a client's intent to commit perjury but also the lawyer's subornation of the perjurious testimony. id.

b. Deceased Clients

While the attorney-client privilege survives the death of the client, a lawyer can be compelled to testify as to prior discussions with that client which are now relevant to clarify a dispute between heirs. In re Norton, 351 So.2d 107 (La. 1977).

c. Breach of Duty

Lawyers and clients may also be compelled to testify concerning the breaches of duties owed between them.

d. Lawyer as Notary

No privilege attaches to testimony that is relevant to the issue of authenticity or capacity concerning a document which the lawyer signed as either a witness or a notary.

e. Joint Defense

Co-defendants may preserve the privilege over communications exchanged between co-defendants, in furtherance of a joint defense In re: Succession of Manheim, 98-2051 (La. App. 4th Cir. 4/21/99) 734 So.2d 119; however, the co-defendants can be compelled against each other over disputes that arise over the former common interest.

f. Identity of Client

An attorney may be compelled to testify as to the identity of his client or his client's representative unless the disclosure of that identify by the lawyer would reveal the reason for legal services or disclose otherwise privileged communications.

4. Subpoenas to Lawyers

Code of Evidence Articles 507 and 508 concern the requirements necessary to be met prior to the issuance of a subpoena to a lawyer for testimony in both criminal and civil proceedings. Both rules require the following elements:

b. The purpose of seeking the information is not to harass the attorney or client;

c. The subpoena lists the information sought with particularity and limited in time and scope; and

d. There is no alternative means of obtaining the information. See La. Code Evid. arts. 507-508.

The attorney-client privilege is of paramount importance, and any concerns involving the privilege should be anticipated prior to trial and evaluated by motions in limine or at pre-trial conference. Nonetheless, knowledge of the rule and its exceptions may help the lawyer avoid unwanted disclosures at trial.

G. ATTORNEY-WORK PRODUCT IMMUNITY

The work product rule is an offspring of the attorney-client privilege and can be found in two provisions of Louisiana law. It is first found in Code of Civil Procedure article 1424 which states: "the court shall not order the production of inspection of any writing obtained or prepared by the adverse party [or] his attorney ... in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice..." La. Code Civ. Proc. art. 1424. At trial, the work-product privilege is preserved through Code of Evidence Article 509 which states that: "nothing in this chapter shall be construed as derogating from the protection afforded by the rule as relating to work-product." La. Code Evid. art. 509.

The work-product doctrine exists to assist the client in obtaining legal advise but also to afford an attorney a "zone of privacy" within which the attorney can freely evaluate and prepare the case. Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125 (La. 1983).

2. "Opinion-Work Product"

"Opinion-work product" is a subset of the work-product rule which encompasses almost any writing prepared in anticipation of litigation. Stevens v. Hartford Ins. Co. of the Midwest, 94-523 (La. App. 3rd Cir. 11/2/94), 646 So.2d 981. The scope of this doctrine is both distinct and broad, covering information not subject to the attorney-client privilege. Id.

3. Qualified Privilege

The attorney-work product is a qualified privilege and can be overcome by a showing of need and undue hardship. If a party can show that the information was obtained or prepared in anticipation of litigation, then the burden of proving the undue hardship or injustice shifts to the party seeking that production. Sass v. National Union Fire Ins. Co., 96-2332 (La. App. 4th Cir. 3/5/97) 689 So.2d 742, writ denied. 97-0975 (La. 5/30/97), 694 So.2d 249. Because work product protection is qualified, these issues should be identified and fully researched well in advance of trial.

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