Let’s Look at Our Job as Litigators: Is There a Better Way Than a Completely Adversarial Posture?

By:  GUY O. KORNBLUM1

Personal Insurance Claims Lawyer

Ok, trial lawyers and litigators, let’s look in the mirror! Are we doing our job for our clients the way we should? Are we effective in the dispute resolution process? Is there a better way than a completely adversarial posture.

Recently three articles by trial lawyers have attracted my attention. The one that struck me the most was posted on a website and titled, “How to Deal with Jerk Trial Lawyers.”2 My goodness, has it gotten to the point at which we have to have a “plan” to deal with opposing counsel to rise to the “jerk” level? Do we have to write about how to deal with the unreasonable opponent because they are prevalent rather than isolated instances?

Next, on a more positive vein were two articles recently in Litigation, “Cutting Costs in Litigation Without Compromise,”3 and “Better Litigating Through Pre-Trial Agreements.”4 These latter two articles had a similar theme:  let’s work together to get the information we need to evaluate our case and work to fashion and course that will result in an effective and efficient plan towards resolution. Of course, this approach does not work if you have to implement the recommendations in the first article because you are dealing with an out-of-control, unabashed “jerk” on the other side who is interested only in venting and flaunting his power in the deposition room, on the phone or in an endless foray of correspondence which is prepared solely for what that lawyer believes is a record of  non-performance on your part.

The latter two articles are consistent with Sedona Conference Proclamation on Cooperation in Discovery, which states in its preamble: “The Sedona Conference launches a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.’” It also states:

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.

With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

While making the point that cooperation in discovery does not compromise an advocate’s duties to his or her client, it elaborates on this point by stating:  

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests – it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

Lawyers preparing cases for trial need to focus on the full cost of their efforts – temporal, monetary, and human. Indeed, all stakeholders in the system – judges, lawyers, clients, and the general public – have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge. It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by “gamesmanship” or “hiding the ball,” to no practical effect.

The effort to change the culture of discovery from adversarial conduct to cooperation is not utopian.  It is, instead, an exercise in economy and logic. Establishing a culture of cooperation will channel valuable advocacy skills toward interpreting the facts and arguing the appropriate application of law.

This all makes sense, but of course, as we all know, “It takes two to tango.”5 If you adversary is not willing to participate then it is back to the old way of attack, defend, attack – to what result.

So how do we implement a plan that allows us to go forward in an efficient and effective manner?

The most important aspect of this approach is communication. Once the parties are identified, consider contacting opposing counsel and take his or her temperature about how you will relate to each other, and whether there is an interest in a cooperative spirit of getting the information each side needs to evaluate the case and perhaps even mediate.  Is there a basis for a cooperative effort or not? Can you work up an agreement on what documents are needed, what depositions can be taken, what issues need to be addressed and agree on a calendar for getting this done efficiently? Often I will prepare a letter to opposing counsel, generally outlining our case, proposing what we need, and  inviting counsel to confer about a plan for working up the case from both sides. I seek agreements on how to proceed, and try to define the issues that we need to address. I also ask opposing counsel to outline when he or she believes is needed in order to evaluate the case:  documents, medical records, a deposition of my client, a medical examination, or whatever is needed. I will respond positively to any reasonable request for information that would be available, and try to expedite the process consistent with my representation of my client. Usually it is in the best interest of my client to be cooperative. If there are areas where we cannot agree, then we “agree to disagree,” define the issue and either work through it or seek a resolution process.

Here are some topics that might be the subject of a pretrial agreement (which can be incorporated into a Case Management Statement and or pretrial order)6:

  • What is the desired scope of any document exchange;
  • What depositions need to be taken or the parties or their agents and/or employees; if they are not local, can these be done in a cost effective manager such as through Skype or video conferencing or even by telephone7;
  • Is there electronically stored information that will be the subject of discovery; what are the needs to the parties here, and how can this be efficiently handled in a cost effective manner;
  • Are the independent witnesses whose depositions need to be taken, and if so will they be cooperative; how can this be efficiently handled;
  • What experts will be used or needed; is there room for use of consultants to initially work up the case for purposes of evaluation and possible mediation?  Can reports be exchanged which are preliminary and used for mediation, with an agreement that they will not be used to examine at deposition or trial8;
  • Is there reason to believe that any of the discovery needed will exceed any limitations on that discovery, and if so, are the parties willing to allow such9
  • Can the parties agree to mediate the case or see an early neutral evaluation or use some other alternative dispute resolution process; this is a good time to try to resolve the case, but it is also an opportunity for the parties to obtain a neutral evaluation of the liability and damages – of the case – or a “reality” check.

I submit that if the plaintiff has initially evaluated the case but needs more to fully reach a considered and full evaluation of his client’s cause, this approach is the most efficient way. If it initially appears that the case is strong, but new information is obtained through this agreed upon process that there are weaknesses in the case or issues that change the evaluation, then it is better for plaintiff’s counsel to know that up front. On the other hand if the defendant discovers and determines that there is a high risk of an adverse result, and the costs of going forward can be avoided, then this process can yield a result that may be in the best interest of the defendant.

After all, research has confirmed that settlement is statistically better for both sides, so why not implement a plan that gives the parties the best opportunity for resolution by settlement or mediation as a preferred alternative to trial10.

Try it; maybe you will like it. But it won’t work with “jerks.”  I have tried.

If you have questions about a disability insurance case, please contact a personal insurance claims lawyer in San Francisco, CA, like the office of Guy O. Kornblum, APLC for answers.

Footnotes

1 Mr. Kornblum is a principal in the San Francisco based law firm of Guy Kornblum & Associates, which is a general civil litigation firm representing its clients in trials, arbitrations, mediations and appeals.  Mr. Kornblum also himself serves as a mediator and expert witness in cases involving civil litigation issues and insurance claims matters.  He is Certified in Civil Trial Advocacy by the National Board of Trial Advocacy, is a member of the Multi-Million Dollar Advocates Forum, is a Platinum Member of the Verdict Club and a Charter Fellow of the Litigation Counsel of America Trial Lawyer Honorary.  He also is a Legends Society Top Lawyer, and a member of the Elite Lawyers of America.  He is co-author of three books, including “Negotiating and Settling Tort Cases,” published by Thomson West and the American Association for Justice, published in 2007 with a revised edition in 2012.  He regularly teaches CLE courses for various groups and is a frequent lecturer to law schools and  professional groups on topics related to mediation, insurance and civil trials and appeals.  His website is www.kornblumlaw.com.  

2 http://www.trialtheater.com/wordpress/professionalism;’how-to-deal-with-jerk-trial-lawyers/.

3 38 Litigation, No. 1 (Fall 2011), p. 48.

4 38 Litigation, No. 1 (Fall 2011), p. 22.

5 The phrase originated in a song, Takes Two to Tango, which was written and composed in 1952 by Al Hoffman and Dick Manning. The lyrics and melody were popularized by singer Pearl Bailey’s 1952 recording. The phrase was reported widely in the international media when Ronald Reagan quipped about Russian-American relations during a 1982 presidential news conference. Reagan said, :”For ten years détente was based on words by them [the Russians] and not any words to back them up. And we need some action that they — it takes two to tango — that they want to tango also.” Since that time, the tango metaphor has appeared regularly in the headline of the international press. The phrase has gained currency as a proverb in loan translation in other languages. (Source: Wikipedia.)

6 See Rule 26(f)(3) of the Federal Rules of Civil Procedure for topics that can be considered in both state and federal court for an agreement.  Counsel must confer before the initial Scheduling Conference, so this process is consistent with the federal requirements.  However, I am urging an even more cooperative effort than outlined in the federal rules.  Thus if the parties can agree on a process for moving towards resolution by some evaluative or mediated process, motion to even trial, the overall plan can be incorporated in any order of the court.

7 I have done many telephone depositions using a video camera at the site to record the witness’ demeanor and avoid any claim of coaching by the witness’ counsel.  Now with Skype and other video conferencing alternatives, these can be less costly than travel while yielding the evidence needed to go forward with the case.

8 See Rule 26(b)(4) of the Federal Rules of Civil Procedure re the “new” rule regarding what needs to be disclosed.  I would propose that the parties agree that a preliminary report can be exchanged for initial settlement discussions or for a mediation, and that the parties agree that these initial reports will be subject to revision, if the expert so choses, and that the preliminary reports not be allowed any further use at deposition or trial.

9 See Rule 30(a)(2) of the Federal Rules of Civil Procedure  placing a 10 deposition limit without agreement or leave of court and Rule 33(a)(1) of those rules relating to a 25 interrogatory limitation.  In California, the limit is 35 (Cal. Code Civ. Proc. §2030.030(a)), but there are no limits on the number of depositions.  There are no limitations in federal or California state courts on the number of Requests for Production or Requests for Admission.  In federal court, under Rule 35, the party requesting a physical or mental examination must obtain a court order.  Often this can be handled by a stipulation of the type of examination and duration, with the understanding that a report of such and the examiners notes and records will be provided counsel for the party being examined.

10 “Research Confirms Negotiated Results Superior to Going to Trial,” San Francisco Attorneys, Spring 2009, p. 44.