McElhaney on Litigation

No Place for Fights

Too much squabbling in discovery takes your focus off trial preparation

Posted Jan 4, 2007 7:36 PM CDT
By James W. McElhaney

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That’s it,” said Doug Connolly. “I quit. This is no way to make a living. They can’t make enough Pepcid AC or Maalox or whatever to kill this kind of pain. I’m getting out.”

It wasn’t the first time Connolly had announced he was quitting the practice of law. Every week or so he would drag himself into the Brief Bag and deliver a screed against the way “young pit bulls” at the big firms get away with murder by disrupting depositions with endless objections, building disingenuous stone walls around key documents, and misrepresenting the oral commitments they made in discovery agreements.

“It’s bad,” agreed Andy Lundquist, “but Professor Warbler says we can solve all that with some new discovery rules he’s proposing in an article he wrote.”

Myra Hebert snorted. “We don’t need more rules,” she said. “We’ve got too many as it is. Trouble with discovery is, when you’ve got a problem, you can’t get a judge. If it weren’t for lazy judges, practicing law would still be civilized, the way it was back when I started.”

Flash Magruder rose to the bait. “If everything was so civilized when you started practice,” he said, “how come the very first issue of Litigation, in 1975, was about manners and morality at the bar?”

Dick Mudger joined in. “But it’s getting worse. Lawyers and judges all over the country tell me that discovery keeps getting longer, more expensive and more dishonest, despite a lot of well-meaning attempts to fix it.”

“Worse is right,” said Myra. “There are firms in Washington, New York City and Los Angeles that admit one of their primary goals in discovery is to inflict pain on the other lawyers.”

“There is serious discovery stonewalling going on right here,” said Regis McCormick. “I’ve got a friend at Windstrom and Crusher—I’ll call him ‘the Mole.’ He says they’ve cut back on using motions to fight document requests. They used to always ask for protective orders, saying how ‘burdensome, vexatious, time-consuming and expensive’ it would be to hand over certain documents.

“But now it seems there are more lawyers who take that as a signal that they must be on to something big, so they really fight for whatever Windstrom and Crusher doesn’t want them to have.

“The Mole says that instead of trying to head off discovery with pretrial motions, Windstrom and Crusher has decided to act as if they’re being cooperative, but then ‘forget’ to turn over key documents—especially ‘smoking guns.’ He says the new policy is working. About 80 percent of the time when documents aren’t produced, the other side doesn’t realize it.

“And when Windstrom and Crusher gets called on what they’re doing they get terribly apologetic. They turn over a few more harmless documents but still manage to overlook ones that really count.”

“None of this should surprise anybody,” said Beth Golden. “This is what you expect when most litigators have no idea how to try a case in front of a judge. All they know is how to misbehave when the teacher is out of the room. They know how to be bullies when the judge isn’t there, but if the case gets to trial they typically fold like a wet cardboard suitcase on a rainy Saturday night.”

Angus smiled. “Nice image,” he said. “And it hints at the approach you should take when you’re dealing with discovery abuse. The point of discovery is not to get into a fight; it’s to get ready for trial. If you’re seriously focused on trial preparation you will develop a strategy for dealing with discovery trouble when it comes.”

This was getting good, so I got out my pad and began taking notes.

DOWN, MONGO

Start with the discovery agreement. say you and the lawyer on the other side meet and agree on how to handle interrogatories, documents, depositions, deadlines for experts and lots of other matters.

Four days later, you get a letter from the other lawyer confirming the details of your meeting. Something catches your eye. Then a careful reading reveals that the letter seriously misrepresents a number of things you and the other attorney agreed to.

As always, Mongo, your inner beast, is ready for battle. You can feel your heart pound as you hear, “Mongo kill other lawyer now!”

But don’t give in if your focus is on getting ready for trial. Calling and screaming at the other lawyer is not going to straighten it out.

Neither is running to the grievance committee of the local bar association (although you may have a professional obligation to write an appropriate letter to the committee later on). So what do you do?

If you don’t respond, it will look like you’ve agreed to all those misrepresentations. But what do you call the other lawyer who wrote the “confirmation” letter?

Nothing. It’s enough that you’ve caught this rascal at his game. Now you know what to look for as things progress, but it won’t help you or your client get ready for trial if you let Mongo write the letter.

Instead, you might try what Gerald A. Messerman of Cleveland wrote in a similar situation: “I have your letter of Sept. 23. I do not have the time to correct all of the misstatements it makes concerning our discovery conference. Suffice it to say it does not represent our agreement.”

Do you send a copy of the letter to the judge? Forget it, says Lawrence J. Fox of Drinker Biddle & Reath in Philadelphia, a past chair of the ABA Section of Litigation.

“Judges hate to be involved in discovery disputes,” says Fox. “Sending the judge a copy of your letter may make you look worse than the other guy.”

HIDE AND SEEK

“Forgotten” documents are a different problem. Unless you keep track of discovery, a forgotten document is something you might miss altogether. So the first step, according to George J. Koelzer, of counsel in the Los Angeles office of Archer Norris, is to maintain a close watch on discovery. You need to keep track of every request that goes out and every document that comes in.

However you do that—with a computer or a handwritten checklist—you are still dependent on the integrity of the lawyers on the other side. And they may be playing games with how you happened to word your document requests.

That means you have to dig deep, working back and forth between documents and depositions.

First, you have to be familiar enough with the kind of case you’re handling to know what documents ought to be there. Otherwise you might falsely assume that what the other side gave you is all it has. If you don’t know, for instance, the hospital in a medical-malpractice case is supposed to have a fetal monitoring strip that records essential information during birth, you won’t know if it’s missing from what they sent you.

Second, you have to be incredibly thorough in taking the deposition of everybody connected with the case.

You must pursue every document that ought to be there and try to find out what happened to it. Sometimes that means finding people even the hospital has no record of anymore—a job with which the Internet may help.

What about those nasty, snarling pit bulls who curse and yell and even throw things in the middle of depositions?

Koelzer, who moved to Los Angeles from the East Coast, says things are actually worse in California because it is harder to get to a judge there for a ruling on a deposition dispute.

Maybe so. But whatever the causes and wherever the location, you must learn to deal with it. There are three things you need:

  1. Persistence. Like the trench battles in World War I, modern depositions are wars of attrition. Come armed with a schedule that can give you more time than the deposition could possibly take.

  2. Self-control. The opponent’s object to inflict pain in a deposition is absolutely aimed at making your Mongo take over the hearing and concentrate on the verbal battle of the moment. Letting Mongo fight back may be emotionally gratifying, but is almost guaranteed to make you miss something big.

  3. An actual game plan. You need to walk into the room not only thoroughly briefed on what to expect from the witness and the other lawyer, but also carrying a list of what you want to accomplish. It’s easier to stick with your plan if you’ve actually got one.

Finally, there are techniques that will help you contain another lawyer’s “discovery rage.”

One is scheduling a video deposition when going up against an outrageous opponent. As Paul Bardacke of Eaves Bardacke Baugh Kierst & Kiernan in Albuquerque, N.M., says, “When the mad dogs realize they’re on ‘candid camera,’ they get self-conscious.”

Another is taking a break to let things cool off. One creative lawyer in San Francisco stands up when her opponent starts screaming, makes a “T” signal with her hands and says, “Time out.”

She then goes on to add, “That’s what I tell my 4-year-old when he behaves like you. We’re going to have a recess until you calm down.”

James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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