McElhaney on Litigation

Discovery Is the Trial

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Illustration by Edwin Fotheringham

“Have you heard?” said beth Golden in Zapata’s Chili House last Friday. “ ‘Tricky’ Strickland and Joyce Michaelman left Windstrom & Crusher to start their own litigation boutique.”

“I know all too well,” said Ernie Romero. “They’re the new defense team in a big commercial lease case I filed three months ago. First thing they did was amend their client’s answer by adding six crazy new defenses and an absurd counterclaim demanding a million dollars in damages.”

“Be careful,” said Flash Magruder, the plaintiffs personal injury lawyer. “No telling what those two rascals will do.”

“Neither of them are really trial lawyers,” said Dick Mudger, the insurance defense lawyer. “They’re ‘lit­igators.’ ”

“Right,” said Beth. “Discovery will be ‘interesting,’ to say the least, but the case will probably never get to trial—no matter what you do.”

“So the result,” said Ernie, “will be more than two years of hypertechnical drudgery for me and my client, with the potential for a good result seriously reduced. And this is a case that really needs to go to trial.”

“Actually, that’s what you’re in the middle of now,” said Angus. “Trying the case.”

“What are you talking about?” said Ernie.

“In more than 90 percent of all cases filed in the United States, discovery is the only trial anybody gets,” said Angus.

“If looking for holes in the other side’s case can be called a trial,” said Dick Mudger.

“Exactly,” said Flash Magruder. “For once we agree about something.”

“And you two have just put your finger on the problem,” said Angus. “Discovery is supposed to be the opportunity to evaluate both sides of the case. But most lawyers have become obsessed with two things: using discovery to poke holes in the other side’s case and trying to hide the holes in their own.”

“What’s wrong with that?” said Beth.

“It’s only half of the job,” said Angus. “In nine cases out of 10, the other lawyer isn’t just your opponent—he’s a key member of the only jury you’re going to get. And acting like one of those snarling mastiffs on Chicago Law Dogs gets in the way of the other half of discovery—educating your opponent about the strengths in your case.

“So if you want to get better settlement results from discovery, you have to be willing to make some changes. Like Ed Foreman, the inspirational speaker, says, ‘If you always do what you’ve always done, you’ll always get what you always got.’ ”


“So how do I get more ‘trial’ from discovery?” said Ernie.

“First, don’t get drawn into trying to beat Tricky Strickland and Joyce Michaelman at their own game,” said Angus. “Every time they lure you into letting Mongo—your inner beast—take over what you do, they win that round.

“But whenever you go to a meeting, a deposition or a pretrial conference with those two characters and you consciously warn Mongo before you walk in that they’re going to try to make him angry, you’ll have no trouble keeping him under control.”

“You’re not serious,” said Ernie. “Does that work?”

“It’s how I learned to deal with my Mongo,” said Angus. “You have to warn him a few minutes in advance. Lecturing him a week ahead of time wears off too soon, and trying to cool him down after he’s already hot is too late.

“Second, let your client in on your strategy of sensibility. Lots of ordinary folks and even heads of big corporations think they should hire the meanest lawyer in town to represent them. But acting like a junkyard dog is not good lawyering—it’s expensive client entertainment. Besides, when your client sees how effectively your self-control puts you in charge of the situation, he’ll be impressed.”

Ernie’s eyes were wide open. He was taking this in.

“Next,” said Angus, “educate your opponent about some of the strengths in your case.”

“Wait a minute,” said Beth. “Deliberately educate your opponent about your case? Isn’t that taking a big risk?”

“There are risks with everything you do in litigation,” said Angus. “But lawyers need to learn that discovery is not like playing a game of Stratego, where the point is to hide your flag. Revealing a strength doesn’t weaken your case unless it’s giving away a strategy that depends on total surprise for success.”

“And in my opinion,” said Dick Mudger, “those kinds of ‘surprise trial tricks’ typically backfire.”

“We agree again,” said Flash Magruder.

Angus smiled. “Let me give you an example of exposing an unknown strength,” he said. “Say you’ve found a wonderful expert witness who has never testified before but is a captivating explainer who can make even the most difficult ideas come alive.

“What should you do? Most lawyers would hide your expert’s light under a bushel. In fact, a lot of trial training programs say you should always instruct your experts to be as terse and unhelpful as possible when their depositions are taken.

“But why? To keep from exposing some weakness you don’t know about? Or is it just to make life difficult—and more expensive—for your opponent?

“Would it make more sense to let some of your expert’s light shine through so the other side could appreciate the risk of not making a realistic settlement?” said Angus.

“But what if your case doesn’t involve an expert witness or you don’t have one who sparkles?” said Beth Golden. “What do you do to impress the other side then?”

“One approach is to concentrate some of your discovery on the other side’s fault,” said Flash Magruder. “Make their fault a recurrent theme in your depositions and requests for admissions.

“In any kind of case—business or personal injury—if you want big damages, you must prove big fault. No matter what the law says, fault is a powerful persuader.”

“But what if you’re the defendant?” said Beth.

“Doesn’t matter,” said Dick Mudger. “You still want to concentrate on fault. You basically ought to put the other side on trial in any kind of case.”

“I agree,” said Angus. “And demonstrating your ability to do that when you’re in discovery has a real effect on how your opponent sizes you up.”

“But what if none of this gets through to the client?” said Sandy Ramirez, who had been quietly taking notes. “Wouldn’t that cut down on the effectiveness of these techniques?

“My friend the Mole, who tells me what’s going on inside Windstrom & Crusher, says Joyce Michaelman and Tricky Strickland were notorious for twisting the information they passed on to their clients.”

“Too many practitioners put their own interests above those of their clients,” said Angus. “When those kinds of lawyers have a number of cash-cow cases paying them thousands of dollars a month, there’s not much incentive for telling their clients about the possibility of a quick settlement that could save them a lot of money.”


“So how do you get your message past the other lawyers to an opposing party who may be willing to talk sense?” said Ernie. “You can’t just pick up the phone and talk directly to the other party. You’d get disbarred.”

“But wouldn’t you like to know whether the de­fendant’s CEO in your trial wants to settle the case?” said Angus.

“Of course,” said Ernie.

“Why not take his deposition,” said Angus, “and ask him, ‘Would you rather settle this case without going to trial?’ It’s a perfectly proper question, and you’re entitled to an answer. But it’s amazing how few lawyers ever do it.

“And when you represent the defendant, you can hand the plaintiff’s CEO a settlement check during the deposition and ask him if he’d like to settle the case right now. A $2 million or $3 million certified check can have a lot of persuasive power.”

“That’s highly unusual,” said Dick Mudger.

Angus chuckled and said, “Thanks for the com­pliment. That’s what Hamilton Burger, the pros­ecutor, used to say whenever Perry Mason did anything creative during trial.”

“Do you have any other ‘unusual’ suggestions?” said Flash Magruder.

“I do,” said Angus. “Dave Malone from McLean, Va., who not only tries cases but also helps other lawyers prepare for trial with his company Trial Run Inc., has another way to talk directly to the other side, using settlement presentations.

“He invites the other side’s lawyers and CEO to a two-hour polished presen­tation of facts and demonstrative evidence in his case—led by him and his client’s CEO or one of his key expert witnesses.

“It’s not a deposition. There’s no sworn testimo­ny or cross-examination. It’s simply an impressive and tantalizing look inside Malone’s trial book that gives his guests some idea of what they’re up against.”

Ernie Romero smiled. “If enough of our local lawyers start using discovery techniques like this,” he said, “Strickland & Michaelman may be in for some tough times.”

“Couldn’t happen to a better couple of people,” said Flash.

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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