An Insider’s Perspective on Civility in Discovery – Is it an Oxymoron?
Discovery is often a tense process. The reasons are understandable: the information disclosed may determine which party wins at trial. With the stakes so high, it is easy to see why tempers flare and civility fades. Also, judges are rarely present to control the process as it unfolds. Must civility be a casualty?
I was a litigator for 34 years before taking a position as a research attorney with the Contra Costa County Superior Court. When I was involved in a discovery dispute, the merits of the dispute always seemed obvious: I was right, and the opposing attorney was wrong. The view from inside the court is rarely so clear.
Discovery is permitted so each side can educate itself about the validity of the other’s claims and defenses and, presumably, to avoid trials where the outcome would have been obvious had both sides known what the evidence would be.
The Civil Discovery Act has certain principles at its core. These include that discovery is mutual and self-executing. Yet the adoption of the first Civil Discovery Act in 1957 did not immediately produce a smooth operating system for the mutual exchange of information. Instead, armed with a new procedural device and associated rules, attorneys immediately began testing the limits of those rules, drafting longer and more highly-prefaced written discovery, and coaching witnesses in deposition in ways they could never do when examining witnesses at trial. Thus, the act moved the battle between attorneys from an arena that was judicially supervised to one that largely was not and is not.
Any attempt to bring civility to the process requires a reaffirmation of the act’s original core principles of mutuality and self-execution as well as a broader view of what constitutes success in the individual case and in the practice of law as a whole.
Many discovery disputes would never arise if plaintiffs’ attorneys focused, at least at the outset, on learning just the key information needed to support their case and meet the defendant’s defenses. Similarly, defense attorneys should accept the basic principle of mutuality: they must give information as well as receive it. It would also help if attorneys realized they can benefit as much from being held in high esteem by their peers and by judges for their collegiality, as for being known as the most difficult lawyers in their communities. When attorneys of the latter type are present on both sides of a case, it is hard to predict which client will win at trial. But it is certain that each client will lose, through years of discovery disputes and an accompanying increase in legal expenses.
It would also help if attorneys understood how discovery disputes may be viewed by the courts. No matter how obvious it may seem that you are the aggrieved party, a court reviewing an exchange of inflammatory meet-and-confer letters becomes like the parent of squabbling children: it doesn’t immediately know who is right, it just wants the squabbling to stop.
An effective attorney can also be civil; indeed, civility is part of what makes an attorney effective. The best trial attorneys are civil, likeable people. Judges and jurors enjoy being around them. No one likes being around a person who battles about everything. Referrals come to the attorneys who are the most competent and effective, not necessarily to those who are the most difficult and aggressive. The life of an attorney in private practice is hard enough. There is no reason to make it even harder by going to war every day over discovery.
Since 2013, when it had to eliminate its Discovery Commissioner position due to budget cuts, Contra Costa County Superior Court has required submission of most discovery disputes to its Discovery Facilitator Program. Over the succeeding years, hundreds of discovery disputes have been resolved through the program. I speak from firsthand knowledge when I say that the judges greatly appreciate the time generously volunteered by the Discovery Facilitators.
There are few positions like the one I held at the court over the last eight years.
Not many attorneys get to experience the way it feels to view a dispute as a judge would. However, volunteering as a Discovery Facilitator is one. During these last years, I have often thought, “If only I knew then (when I had my own law firm) what I know now.” The things I have learned working at the court have been invaluable in teaching me what judges appreciate most in attorneys’ writing and demeanor, and of how disputes between attorneys are viewed and resolved. The Discovery Facilitator Program is recruiting volunteers after experiencing a recent shortage. If you have not volunteered yet, consider doing so to gain this perspective as well as the thanks and respect of your peers and the court. You can find an application on the court’s website.
Here are suggestions on how to bring civility to the discovery process. When requesting discovery, focus first on what you need most. Don’t start with overly broad requests or use discovery as a weapon to punish the opposing client or attorney. When responding to discovery, understand that you cannot shield every bad fact. That the information may hurt your client’s cause is not a valid objection.
Establish a relationship with your opponent of reciprocal personal courtesy. Assume honest and good faith motives until the opposite is proven. Don’t laugh at, disparage, or engage in personal attacks on your opponent. Recognize that your opponent also has a job to perform.
Keep your meet-and-confer letters brief and professional in tone. No one ruling on your motion wants to read a litany of charges of past bad behavior. They want, as quickly as possible, to focus on the merits of the narrow issues that remain in dispute.
And above all else, in all your interactions with opposing counsel, act as though the judge were present. One day she or he will be.