"product" as non-manufactured

James E. Clapp jeclapp at WANS.NET
Tue Feb 8 18:45:10 UTC 2000

Fred Shapiro and Ron Butters call attention to the legal term "work
product," a.k.a. "attorney work product," which refers to an attorney's
notes and other materials and analysis prepared by or for an attorney in
anticipation of trial.  According to the "work product doctrine," an
attorney's work product is ordinarily exempt from pretrial discovery
because it would give away the attorney's strategies, and anyway the
opposition should do its own work. (Remember, this is an adversary
system:  The object is not to seek the truth through analysis of the
facts, but to win a game.)

Fred and Ron are quite right: I overlooked this.  But again I point out
that the question had to do with "products" in the commercial sense of
goods or services marketed to consumers.  Attorney work product is
pretty far afield.  In particular, it is not bought or sold: What the
litigation attorney offers in the marketplace is the service of legal
representation (though, admittedly, in the course of performing that
service the attorney may produce a good deal of paper and even an
occasional thought).

I think it extremely unlikely that business moguls got the idea of
calling their financial services "products" from a phrase used by
litigation attorneys (note: not corporate attorneys) for an arcane
evidentiary doctrine that would seldom be discussed with the client.
(You might discuss attorney-client privilege with the client, but as a
general rule you only have occasion to discuss work product issues with
expert witnesses and other lawyers.)  These business people went to
business school, not law school; they read cases about manufacturing
widgets, not cases about the Federal Rules of Civil Procedure.

But putting sociology aside, from a purely linguistic perspective it
would be quite a leap to derive "product" in the sense of a financial
service from "work product" as used in this very particular legal
context.  For one thing, "work product" is a frozen expression: It is
not the attorney's "product," but the attorney's "work product."  For
another thing, it is a noncount noun.  (Actually, a noncount noun
phrase.)  In the business context, they speak of a product and a range
of products.  (This is why Roly Sussex, who started all this, asked
about the term as "used for financial plans, share portfolio strategies,
mortgages, health plans and so on.")  There is no such thing as "a work
product" or "attorney work products."

The simple fact is that in the services sector of the business
community, beginning I believe with financial services (banking,
insurance, brokerage, etc.), it became at some point the "in" thing to
refer to services as "products" by analogy with the terminology used in
manufacturing and agricultural sectors.  One might speculate that this
started in business schools, where it would have the advantage of making
it possible to make general statements like "The price of a product is
subject to the law or supply and demand" and have it apply equally to
all businesses--thereby making it unnecessary to say "product or
service" and saving two words.

Unfortunately, none of us has/have been able to help Roly with the
question he actually asked, which is when this new usage arose.  It came
as a jolt to me when I heard it in the 1980's, so I'd take a wild stab
and say it arose in the 1970's.  But then, truth to tell, until I
started practicing law I never had much occasion to deal with people who
speak business-ese, and *all* that "rightsize the company so as to grow
the profits by leveraging the human resources" stuff was novel to me;
for all I know it all had been around for decades.  The place I'd look
for cites, though, is business administration textbooks and casebooks
and journals.

Incidentally:  As to the earlier commercial meaning of a fabricated
physical object in trade, it occurs to me now that I should not have
been surprised that it is so recent; the term in that sense could easily
be a product of the industrial revolution.  "Product" in the sense of
agricultural produce is earlier, though.

James E. Clapp

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