Lawyers 'Discover' How to Beat the Rap

By Wagner, David | Insight on the News, December 15, 1997 | Go to article overview

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Lawyers 'Discover' How to Beat the Rap


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.