Lawyer Defends Use of Opponent’s Notes

Should a lawyer who obtains an opponent’s privileged notes of an interview with expert witnesses be able to use them to his advantage in trial?

Justices of the California Supreme Court and students watching oral arguments both appeared to favor arguments that the lawyer should have checked with the trial court first, the Recorder reports.

The dispute centers on actions by lawyer Raymond Johnson of El Segundo, Calif., who discovered he had the notes at the end of a pretrial deposition in a rollover case. He later used the notes to question expert witnesses who seemed to contradict positions chronicled in the notes. A trial court found that use of the notes was an ethical breach and disqualified Johnson from the case. An appeals court affirmed (PDF).

Students from the Sonoma Country Day School were watching the program as part of an educational program. They applauded when the lawyer for Mitsubishi Motors Corp., the defendant in the case, said Johnson had a duty to notify the company and ask a trial court for guidance.

Justices also appeared skeptical of Johnson’s arguments in questioning.

The court posted a background summary (PDF) of the case to its Web site.