Lawyers 'Discover' How to Beat the Rap

Wagner, David, Insight on the News

The discovery phase of civil litigation has become a tactical weapon used by plainffffs' and defense attorneys to drag out lawsuits. Each side blames the other for abusing the process.

If you're a typical nonlawyer citizen, you probably don't like lawyers. Part of the reason is the way they complicate everything they touch. Actually, most lawyers agree -- but fixing the problem probably won't happen anytime soon, because the lawyers disagree about what the problem is as well as about which segment of their profession is abusing the system.

Early in November the Defense Research Institute, or DRI -- the intellectual arm of the tort-defense bar -- held a conference in Baltimore examining various issues, including reform of the process known as "discovery."

Discovery is the way that two sides in a civil lawsuit obtain information from each other to build their cases. It occurs primarily through document requests and depositions. A deposition -- for those fortunate enough never to have been through the process -- is an examination of a witness under oath, with lawyers but without a judge, in a law-firm conference room instead of a courtroom. Statements made in depositions generally are admissible as evidence.

Is this process being exploited by ambulance-chasers who extort big settlements by inundating corporate defendants with onerous discovery demands? Or, on the contrary, does the problem come from fat-cat corporations and their attorneys who crush small plaintiffs by dragging out the discovery process to Dickensian lengths?

Questions about out-of-control legal procedures have broken out from law schools and courtrooms into the mainstream of politics and public debate. Walter K. Olson's book The Litigation Explosion, incisively arguing the defendants' side of the issue, became a best-seller, and parts of it have been assigned in law-school civil-procedure courses. Dial lawyers are said to have been big contributors to President Clinton's election campaigns -- and federal tort-reform legislation has been stymied by presidential opposition.

A source close to the Association of Trial Lawyers of America, or ATLA, the leading organization of the plaintiffs' bar, tells Insight: "ATLA has never given a penny to any Clinton-Gore campaign. It has a political-action committee that contributes to …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Lawyers 'Discover' How to Beat the Rap. Contributors: Wagner, David - Author. Magazine title: Insight on the News. Volume: 13. Issue: 46 Publication date: December 15, 1997. Page number: 31+. © 1999 News World Communications, Inc. COPYRIGHT 1997 Gale Group.

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