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 congressional races; it has given to candidates of both parties, depending on which agree with ATLA that there should be no ceiling on people's ability to hold wrongdoers accountable."
Here's how the problem may look from the point of view of the defense bar in civil cases:
You're an engineer seated at your computer doing the job for which you've been trained and paid to do -- develop better products at lower costs. Then you read an urgent memo from the legal department calling upon you to send over copies of "all potentially relevant documents" relating to litigation concerning the design of Product X that you worked on 10 years ago. "What does `all potentially relevant documents' mean?" This question -- posed rhetorically by tort-defense attorney Debra E. Pole at the DRI panel discussion, is the very one so often posed by employees who are supposed to be adding value to the economy through their inventiveness and diligence rather than draining it through the legal system.
Suddenly you realize that a potentially unlimited amount of your time has just been commandeered. During that time, you will not be allowed to be an engineer. Rather, you will be turned into litigation-support staff.
The role of discovery in litigation was enhanced by the federal courts' adoption of the Federal Rules of Civil Procedure back in 1938. These rules tried to minimize the convoluted "motion practice" that used to draw out trials.
The theory behind the old motion practice was that a trial should not occur until lawyers on each side had narrowed the case down to a small range of disputed facts. …