wsletter
May 2010

Historically, litigation was a process governed by “trial law.”  Unfortunately, the trial has taken a second seat to the discovery process resulting in an over emphasis on pre-trial litigation rather than on testing the wits of the parties before a jury.  Lawyers used to sit down for hours, maybe days, at a typewriter determining the best document requests to propound to the opposition.  The discovery process itself was just thatundefineda process.  Discovery was a means to the ultimate goal "The Trial". Knowing the likelihood of trial, resources were distributed tactfully throughout the litigation process.  Today, however, resources are too quickly spent on protracted discovery that yields very little in the area of relevant admissible trial evidence. There is a desperate need for a resurrection ( do you hear an Amen?) of "practicality" in the discovery process.

  The legal profession as a whole has unquestionably benefited from technological advancements, but a question remains whether it is "burning down" the legacy of "The Trial" as we know it.  The discovery process essentially has two major functions:  (1) to “discover” pertinent facts of the controversy and narrow the evidence through the process to determine its relevancy and utility at trial; and (2) to encourage litigants to engage in the self-selecting process, determining which claims or defenses have merit. If a claim or defense does not have evidence to support it, the parties should engage in a good-faith analysis of what arguments can proceed in good-faith based on objective evidence sought-out by counsel.  Unfortunately, such practicality is escaping the modern day litigation process. 

  The claim of "Your Honor, I believe in good faith that these inquiries will lead to admissible evidence" has taken on a whole new fervor.  Likely the root of this fervor is a lack of focus and understanding of the discovery process especially involving 21^st century e-discovery.   Today’s litigators overemphasize the managing of large volumes of discovery undefined whether hard copy or electronic undefined rather than on what factual issues are central to the controversy and useful to the ultimate trier of fact.  Courts, in an act of self defense will begin using "defense mechanisms", and sometimes that might just be a good hosing down (think sanctions here) to cool the flames.

Admittedly, there are areas of the law where the discovery process is inherently complicated (e.g., certain intellectual property disputes; novel tax controversies; aspects of securities litigation; certain criminal defense matters, mass torts, etc.)  However, most cases, regardless of the amount of money at stake and the number of parties involved, are not particularly “complex” per se.  In distinguishing between “complex” and “non-complex” litigation, the third edition of the Manual for Complex Litigation interestingly described complex litigation as the “need for…judicial management with the participation of counsel.”  See Manual for Complex Litigation, 3^rd, p. 3 (1995).   If a 2010 version of the manual were available, it is not unreasonable to assume that voluminous (and sometimes vitriolic) and expensive discovery could be a considered factor in categorizing a controversy as “complex”.

As Justice Frankfurter opined in Indianapolis, litigation is the pursuit of practical ends; however, almost 70 years later, practicality has eluded a vast amount of litigation, where albeit perplexing, with even lower-stakes disputes generating high-cost discovery.  Since such few cases go to trial than in prior years, most lawyers are failing to prioritize the "facts" of their client’s case and fall into the "cabal" of the "discovery fight".  Such a conduct trend is not beneficial to clients and has created a culture of pre-trial litigation discovery being in reality a profit center. The client's initial dispute is eclipsed by a firestorm of expensive and undirected discovery.  It is ironic that discovery has become so expensive especially since the trial is rapidly being replaced by settlements, mediations, arbitrations and pre-trial dispositive rulings.

The diminishing volume of cases that are actually tried has created a shift in the search for the truth through factual evidence, to the discovery of the potentially relevant. With inquiries that resemble a "pyromaniac" running around with matches flicking them out at random to see what catches on fire, the art of the strategic question and or inquiry seems lost.  By nature, in a risk-averse profession such as law, grappling with the impossibility of reviewing every document with a moral level of certainty, the discovery process has taken on a life of its own.   This is disconcerting when considering that lawyers have skillfully managed complex high volume discovery, including millions of pages of documents stuffed into teetering boxes in huge warehouses for decades long before the current advent of electronic document review and native production of meta data.  Modern day litigators and courts are now beginning to feel the heat from twenty-first century discovery practice. 

A good trial lawyer understands the need to strategize and organize his case and then tell a story that is clear and practical.  A trial cannot exist without the people who partake in the process but technology has, in many ways depersonalized the litigation process.  Just think about the last time you actually picked up a "classic" phone to call opposing counsel, likely you used a Blackberry or some other device (while driving) and maybe Skype, texting (hopefully not while driving) or email. Telephone conversations are becoming sadly obsolete.  Therefore, opposing counsel discuss the merits of their clients’ positions far less frequently than in years past. This lack of contact leaves litigants feeling more isolated and prone to bad behavior, resulting in a lack of reasonable and practical litigation.  

  Practitioners are too quickly relying on canned discovery requests rather than shaping a client's case.

Discovery is not a trial surrogate, and using it as an alternative means to "smoke up the record" and drive expenses sky high for an adversary is not efficient.  Trial lawyers should consider a recalibration of discovery practices that utilize technology in a productive, rather than in a distractive manner thus benefitting the profession as a whole.  Technology is crucial to the advancement of society which includes the judicial process; however, it has made the discovery process far less human.  Lawyers are losing sight of the fact that such software application programs are intended to enhance counsel’s understanding of the case, and not to replace common sense and reasonableness in trying a case on its merits. The goal of discovery should be the search for relevant information and evidence that could be used later at trial. 

The discovery process is about investigating information about the facts involved in a particular dispute rather than creating a dispute within an existing dispute. Courts rely on the parties’ ability to engage in productive discovery that is handled in a professional manner. This includes both the lawyers and the parties themselves favoring common-sense analysis of case information and evidence, over discovery abuse and dilatory burdening of the opposition.   Courts are interested in a good faith and fair adjudication of the disputes before them.  The responsibility to maintain a high level of public confidence in the judicial system rests equally with those who participate in its process. Lawyer's like everyone in society today should view technology as a helpmate.  But, technology misused, could result in a "fire that burned down the house"!