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We have been involved in civil cases where an attorney has requested that we provide oral reports prior to creating a written report The content of our oral reports sometimes dictated whether or not we even created a written report There are primarily three reasons attorneys may request a preliminary oral report: to save money, to avoid documenting something that may harm their case, or to protect the privacy of their theories as they prepare for litigation When money is the sole motivation behind a request to avoid a written report, we always suggest putting your findings in writing, regardless of the client s pocketbook The following paragraphs address the other two concerns A client may ask you to provide an initial oral report to avoid documenting something that may ultimately harm the client s case Sometimes, an expert will not know that a certain fact could ultimately harm the case or conflict with a legal strategy or theory Therefore, it is a prudent approach for an attorney to retain you as a nontestifying expert, because you become an agent of the legal team (usually referred to as just a consultant) This means that essentially anything you do is protected under the work-product doctrine and possibly the attorney-client privilege Thus, if you are retained in the capacity of a consultant, and the lawyer does not like what you have concluded, the lawyer simply tells you not to commit it to writing and does not name you as an expert in discovery Then the attorney can look for another expert who might reach different, more favorable conclusions However, once you are named as a testifying expert and are no longer merely a consultant of the legal team, anything the lawyer says to you is discoverable This includes not just correspondence and bills, but also all oral conversations with the attorney, the client, or anything that is in any way related to or impacts your analysis and opinion When clients request oral reports to protect their hypotheses and courtroom preparation, it is possible that your forensic reports may qualify for protection under the work-product doctrine The work-product doctrine is cited most frequently as a source of immunity from discovery In order to qualify as an attorney work product, Rule 26(b)(3) of the Federal Rules of Civil Procedure specifically states that the work must be prepared in anticipation of litigation, and it extends to protect materials prepared by agents for the attorney The US Supreme Court recognized this privilege in 1947 in Hickman v Taylor, 329 US 495, 510-11 In their opinion, the Supreme Court held that: It is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel Proper preparation of a client s case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference This work is reflected of course, be it in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.

TIP: To save a few CPU cycles, it s good practice not to use method calls in the conditional block of for or other loops if it s not strictly necessary. In this case I created a variable numSpiders to hold the result of [spiders count] and I use that in the conditional check of the for loop. The count of the array remains the same during the for loop s iterations because the array itself isn t modified in the loop. That s why I can cache this value and save the repeated calls to [spiders count] during each iteration of the for loop. I m also scheduling the spidersUpdate: selector to run every 0.7 seconds, which is how often another spider will drop down from the top of the screen. But before doing so, I make sure the same selector is unscheduled, just to be safe. The resetSpiders method may be called while spidersUpdate: is still scheduled and I don t want the method to be called twice, effectively doubling the spider drop-down rate. The spidersUpdate: method, shown in Listing 4 11, randomly picks one of the existing spiders, checks if it is idle, and lets it fall down the screen by using a sequence of actions.

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17:

Listing 4 11. The spidersUpdate: Method Frequently Lets a Spider Fall -(void) spidersUpdate:(ccTime)delta { // Try to find a spider which isn't currently moving. for (int i = 0; i < 10; i++) { int randomSpiderIndex = CCRANDOM_0_1() * [spiders count]; CCSprite* spider = [spiders objectAtIndex:randomSpiderIndex]; // If the spider isn't moving it won t have any running actions. if ([spider numberOfRunningActions] == 0) { // This is the sequence which controls the spiders' movement [self runSpiderMoveSequence:spider]; // Only one spider should start moving at a time. break; } } }

Oral versus Written Reports (continued)

If you wish to have the answer in wattage, eliminate dividing by 1000, and then your answer will be in watts

I don t let any listing pass without some curiosity, do I In this case, you might wonder why I m iterating exactly 10 times to get a random spider. The reason is that I don t know if the randomly generated index will get me a spider that isn t moving already, so I want to be reasonably sure that eventually a spider is randomly picked that is currently idle. If after 10 tries and this number is arbitrary I did not have the luck to get an idle spider chosen randomly, I ll simply skip this update and wait for the next. I could brute-force my way and just keep trying to find an idle spider using a do/while loop. However, it s possible that all spiders could be moving at the same time, since this depends on design parameters like the frequency with which new spiders are being dropped. In that case, the game would simply lock up, looping endlessly trying to find an idle spider. Moreover, I m not so keen on trying too hard; it really doesn t matter much for this game if I m unable to send another spider falling down for a couple of

Some states afford greater protection of work products created by nontestifying experts Therefore, it is possible that an attorney can further protect your documents from discovery by claiming you are a nontestifying expert Also, most factual work products may be discoverable when a party shows a substantial need for the information sought, but opinion work products that reflect subjective beliefs, strategies, and impressions about the case may be afforded greater protections

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