Entries Tagged as 'discovery'

Gamesmanship In A Lawsuit And Discovery Can Cost You

Much of what happens in a lawsuit is gamesmanship, especially during the discovery phase.  Discovery comprises much of the pre-trial phase of litigation where each party seeks to understand what the other side(s) know, what documents they have pertaining to the litigation, what they will say under oath, etc.  Discovery can be expensive.  A Rand Corporation study found that 80% of litigation costs are incurred in the discovery phase.  Since less than 2% of cases filed actually go to trial, discovery ends up being THE cost of litigation for the vast majority of cases. As a result, gamesmanship during discovery can be used as strategic or tactical tool — or abused — depending on how one views it.  Some examples:

  • Asking for voluminous or tangentially relevant documents
  • Taking depositions from an excessive number of people
  • Repeated last minute canceling of depositions
  • Asking inappropriate questions in an interrogatory
  • Refusing to provide requested documents
  • Refusing to answer interrogatories
  • Filing a lot of motions with the court (motions to dismiss, for summary judgment, to compel, etc.)

The goal of the gamesmanship is to create addition expense or agita for the other side, causing them to want to abandon their case or to settle on more favorable terms.  Unfortunately, the usual result is a lose-lose scenario where it creates the same problems for both sides.

In a recent case in California, the court in Clement v. Alegre , 09 C.D.O.S. 12126 imposed a monetary sanction of more than $6600 on one side for abusing the discovery process.  In this case, the plaintiff had objected to answering 20 of 23 interrogatories.  A retired judge acting as discovery referee noted that plaintiff’s objections were “unreasonable, evasive, lacking in legal merit and without justification” and he imposed the monetary sanctions.  Justice J. Anthony Kline for a unanimous appeals panel wrote in salient parts:

We have no difficulty in affirming the trial court’s determination that in this case plaintiffs forced to court a dispute that was not ‘genuine’.

Indeed the record here strongly indicates that the purpose of plaintiffs’ objections was to delay discovery, to require defendants to incur potentially significant costs in redrafting interrogatories that were clear and that did not exceed numerical limits, and to generally obstruct the self-executing process of discovery.

Ample evidence supports the referee’s determination that plaintiffs deliberately misconstrued the question.

Clearly this was ‘game-playing’ and supports the referee’s findings and the sanctions award.

Kline further chastised both sides for failing to mount any “serious effort at negotiation and informal resolution” and used the ruling to remind all lawyers to avoid a similar outcome.

Mediation can help avoid all of these discovery problems.  Discovery is a means to an end — not the end.  The end is resolving your dispute.  Mediation helps get resolutions on your terms.  Mediation seeks to find win-win solutions. If you’re looking for a resolution to your dispute, call me at 732-963-2299 or contact me online.

Trial Lawyers Task Force Recommends ADR and Mediation

In a previous posting, I discussed the American College of Trial Lawyers task force interim report on trials in America.  The final report is out and here are the highlights as it pertains to mediation and getting your lawsuit settled:

  • “Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.”
  • The task force recognized that this is a controversial conclusion, but one represented in reality.
  • “82 percent said that court ordered alternative dispute resolution was a positive development and 72 percent said that it led to settlements without trial.”
  • “52 percent said that alternative dispute resolution decreased the expense for their clients and 66 percent said that it shortened the time to disposition.”

In New Jersey, we have a presumptive mediation program in state court.  Most cases are referred to mediation and most settle before trial.  Parties will be even better served by mediating their dispute prior to the expense and hassle of filing suit.  If you are looking to save money in resolving your disputes, please feel free to contact me to discuss your case further and how mediation can help.

Costs of Discovery Leading to More Settlements

Yesterday, the American College of Trial Lawyers and the Institute for the Advancement of the American Legal released a report entitled “Interim Report on Problems Associated with Discovery”.  Discovery is the pre-trial process where each side engaged in litigation gives and receives information about the case.  This information can include written questions (interrogatories), production (transfer) of documents and other evidence, as well as deposing (interviewing under oath) various witnesses, experts and litigants.  The purpose of discovery is to allow each side to assess how good a case they have (or not) and is guided by rules of court and evidence.

Discovery can be costly and disruptive.  Imagine having to produce records for the other side (under subpoena and other rules of court) that might be extensive, hundreds of bankers boxes.  Or having to spend days away from work in a deposition.  So one can imagine that using this “cost” against the other side becomes a bit of leverage to be used.  The study bears that out.

Nearly 1500 highly experienced lawyers (on a remarkable 42% return rate) answered the survey.  Some of the findings:

  • The civil justice system is in serious need of repair; it takes too long and costs too much. Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
  • The discovery system is broken. Discovery costs far too much and has become an end in itself.  One respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.”
  • Electronic discovery (i.e. emails and other electronically stored datam which can be voluminous), in particular, needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.”
  • Local Rules (rules that are used by a single court or vicinage) are described as “traps for the unwary” and many think they should either be abolished entirely or made uniform.
  • Nearly half of the respondents said that notice pleading (seeking judgment on the case without trial) has become a problem because extensive discovery is required to narrow the claims and defenses and 57 percent said that with notice pleading, motions to dismiss on the pleadings are not effective in limiting claims and narrowing litigation issues.
  • More than 76 percent said that answers to complaints likewise do not accomplish the goal of narrowing issues. This suggests that a further look at notice pleading may be in order.
  • Only 34 percent of the respondents thought that early discovery disclosure (rules intended to reduce discovery) reduces discovery and only 28 percent said that it lowered litigation costs.
  • Ninety-two percent said that the longer a case goes on, the more it costs (this seems like a silly question to ask…what did the other 8% think, it gets cheaper) and 85 percent thought that litigation in general and discovery in particular are too expensive.
  • Sixty-four percent said that the economic models of many law firms encourage more discovery than is necessary.
  • Expert witness fees are a significant cost factor driving litigants to settle, ranking just slightly behind trial costs and attorneys fees in that respect.
  • Forty-five percent believe that there is discovery abuse in almost every case (almost equal in amount between plaintiff and defense counsels)
  • The survey respondents especially like judges to require ADR (55 percent said it has been a positive development in managing cases) and more than half thought arbitration is less expensive and faster than civil litigation.
  • Fifty-three percent said that the cumulative effect of discovery-rule changes since 1976 has not reduced discovery abuse.
  • 87 percent agree that electronic discovery is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges.
  • Nearly 86% of respondents say discovery sanctions are seldom imposed
  • Nearly 71% believe counsel use discovery as a tool to force settlement
  • 56% said that the time required to complete discovery is the primary cause of delay in the litigation process, and another 20% of respondents cited the primary cause of delay as attorney requests for extensions of time and continuances.
  • 87% said discovery is too expensive and 85% said litigation is also too expensive
  • Nearly 81% report that their firms turn away cases when it is not cost-effective to handle them
  • 83% of respondents believed that litigation costs drive cases to settle that should not settle on the merits
  • Over 94% believed trial costs are an important factor in driving cases to settle, and a nearly equal number believe the same about attorney fees
  • Nearly 73% of respondents report that one-fourth or fewer of their cases are processed through ADR.
  • Over 82% view cases settling without trial due to court-ordered ADR as a positive development.

Overall, the report is a pretty stinging indictment of the civil justice system.

One of the criticisms of mediation is that it is “cheap discovery”.  What is so wrong with finding out early on what the other side has?  Mediation serves a useful purpose in getting the issues on the table early and effectively.  I’ve held mediations where attorneys learn new things from their clients (that were critical to their case).  I’ve had others where attorneys can quickly see how poor a witness their client will make.  New information presented in the mediation can change valuations of a case.  I encourage informal information exchange between the parties prior to mediation.

Simply put, mediation is a major part of the cure for the ills of discovery and of civil justice.  If you’re interested in saving time and money on your dispute, litigation or divorce, please feel free to contact me to discuss things further.