Also known as: preparations
Written by attorneys · grounded in primary & secondary sources — see below
4 senses
Conduct that devises the means to commit a crime but falls short of the overt act required for attempt liability. The line is crossed when the defendant's actions come dangerously close to completing the target offense under the proximity test.
Conduct that devises the means to commit a crime but falls short of the overt act required for attempt liability. The line is crossed when the defendant's actions come dangerously close to completing the target offense under the proximity test.
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Material prepared in anticipation of litigation or for trial, including attorney work product and communications with experts. Such material receives protection from discovery absent a showing of substantial need.
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A non-character purpose for which evidence of other crimes, wrongs, or acts may be admitted. The purpose must be relevant to an issue such as motive, intent, plan, or absence of mistake.
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Expenditures reasonably made in anticipation of performance or during performance that may be recovered as reliance damages when the injured party elects that measure instead of expectation damages.
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Material prepared in anticipation of litigation or for trial, including attorney work product and communications with experts. Such material receives protection from discovery absent a showing of substantial need.
A non-character purpose for which evidence of other crimes, wrongs, or acts may be admitted. The purpose must be relevant to an issue such as motive, intent, plan, or absence of mistake.
Expenditures reasonably made in anticipation of performance or during performance that may be recovered as reliance damages when the injured party elects that measure instead of expectation damages.
Each sense below has its own examples, sources, and questions.
Preston Pratt bought a gun, loaded it, and drove to the victim's house with the intent to shoot him. He parked across the street and began walking toward the front door with the weapon drawn. When arrested, Pratt claimed he had changed his mind moments earlier. Because his actions had already crossed into an overt act, withdrawal provided no defense to the attempt charge.
Preparation remains mere preparation until the defendant's conduct comes dangerously close to completing the target offense. Acts such as purchasing materials or traveling to the scene stay preparatory, while pointing a loaded gun and pulling the trigger crosses the line into attempt.
Supporting sources
Pulse Media produced an email containing an attorney's draft memo analyzing litigation strategy. Upon realizing the production, counsel immediately notified opposing counsel of the claim of trial-preparation protection. The receiving party was required to return or sequester the document and refrain from using it until the court resolved the claim.
Peter Park accepted representation in a complex commercial dispute but failed to review key contract provisions or interview potential witnesses before filing the complaint. The client later discovered that critical facts had been overlooked. Park's lack of thorough preparation violated the duty of competent representation.
Patriot Insurance's attorney conducted interviews with potential witnesses and prepared memoranda summarizing their statements in anticipation of a coverage lawsuit. When the opposing party sought the memoranda in discovery, the court denied production absent a showing of substantial need for the attorney's mental impressions.
The receiving party must promptly return, sequester, or destroy the information and any copies. It must not use or disclose the material until the claim is resolved and must take reasonable steps to retrieve any information already disclosed.
Supporting sources
Work-product protection yields only upon a showing of substantial need for the material and an inability to obtain the substantial equivalent without undue hardship. Mental impressions and opinions of counsel receive heightened protection.
Supporting sources
Penelope Price was charged with arson of a rival's warehouse. The prosecution offered evidence that Price had previously scouted the same building and purchased identical accelerants two weeks earlier. The court admitted the evidence to prove preparation for the charged offense rather than to show criminal propensity.
Pacific Bank contracted with Pinnacle Holdings to finance a new branch but repudiated before construction began. Pinnacle had already leased equipment and paid architects for site plans in reliance on the agreement. Pinnacle recovered those preparation expenditures as reliance damages after the bank failed to prove the project would have been unprofitable.
Reliance damages reimburse reasonable expenditures made in preparation for performance or during performance. The breaching party may reduce the award by proving with reasonable certainty that the injured party would have suffered a loss even if the contract had been performed.
Supporting sources
…of Industrial Power: A Comparison of France and Germany (1986). Mikulecky, Job Literacy: The Relationship Between School Preparation and Workplace Actuality, 17 Reading Research Quarterly 400 (1982). Mikulecky & Ehlinger, The Influence of Metacognitive Aspects of Literacy on Job Performance of Electronics Technicians,…