I had a chance to speak with a group of judges recently. The topic of discovery arose. Discovery is the process by which the parties to a dispute learn more about each other and the dispute itself. I have found, over years of teaching, that a great many non-lawyers struggle with the concept of discovery.
Perhaps it helps to think of it in a non-litigation context. Imagine that you have been fixed up on a blind date. This means spending time with someone about whom you know very little. In litigation, you may find yourself similarly spending time with someone whose vehicle has struck yours (or vice versa), who worked in a branch office of your company (or is the boss of your boss in a company), or who you think has stolen your lyrics and produced a record (though your lyrics may turn out to be too "banal" to support recovery).
Thus, through some event, action, or inaction, you could find yourself having to deal with someone that you may know little or nothing about. You are in a dispute about which you may have questions. Discovery is similar to the proverbial "first date." Think of the conversations in which you engaged while in that "first date" process. What was the point? Quite simply, to find out more about the other person.
In the dating context, that might mean finding out likes and dislikes, similarities and differences, and assessing your own feelings about the perspectives and thoughts that the other person brings. A major question may also focus on what that other person's expectations are, and whether they fit with your own. In the litigation context, similarities and differences may be equally important. Understanding the expectations of the parties may be critical. Assessing perspectives and beliefs about the dispute will assist in deciding how to proceed.
In short, discovery is a critical element of the litigation process. It is the gathering of information, either from the other party or from others who know something about them or about the subject of the case (maybe we need an expert on song lyrics and banality?). There are lawyers who enjoy the discovery process and revel in the accumulation and organization of facts and data, and there are others who simply dread it. But regardless of your feelings about it, discovery is crucial to effective litigation.
The way this subject came up in my recent conversations was from two perspectives. The first was a discussion of attorney professionalism. A judge described that a lawyer had voiced the belief that in litigation no information should be provided informally. This lawyer believed that the practice of "stonewalling" was the best, and advocated providing no information whatever to the other side unless ordered to by a judge. That attitude, in my humble opinion, can be labeled with various adjectives including unprofessional, inappropriate, wrong, and more.
The second discussion was about the solving of discovery disputes. A judge described to me frustration at conducting hearings on motions to compel discovery or protection from discovery. If a party seeks something that should not be disclosed (grossly irrelevant, trade secret, etc.) a party might file a Motion for Protective Order to prevent the discovery. If a party fails or refuses to produce answers, documents, or other evidence, a party might file a Motion to Compel Discovery to have the judge order a response.
This second judge was lamenting that significant time is invested in hearings, or at least orders, on these discovery motions. Often, in a hearing, the attorney seeking relief (either protection or compel) might spend significant time arguing the merits of her/his position, making the case for relief. The judge described then turning to the party defending against the motion and asking for an argument might hear something like "Judge, I don't have any real argument against what she/he said, my client will comply if you order them to."
At this stage, another judge interjected that the same occurs when no hearing is held. The judge described receiving the motion and placing it in a "pending" folder to await a response from the opposing party. After 15 days of waiting for a response (Rule 60Q6.115), the judge drafts an order and notes that "while the motion states the ______ (opposing party) objects, no response or objection was filed." In this setting, it appears to some that the opposing party may have sought nothing but delay (15 days) and aggravation (failing to respond, objecting to the motion).
This second conversation included expressions of the judge's incredulity and disappointment. The judge asked me "If there is no real argument, I feel like asking the parties: then why are we here." The judge was frustrated that the parties, the lawyers, could not work out such disputes without motions, hearings, and orders if there was no "real argument."
I have returned to the discussion repeatedly in recent weeks. At the end of the day, the ultimate conclusion from these scenarios is professionalism. Lawyers who do not answer discovery (that is "no response"), who then object to motions without reason, and fail to file a response to the motion to express a reason, are not demonstrating professionalism. Advocacy means representing a client's interests. Professionalism means doing that in a way that facilitates resolution and cooperation.
Professionals understand that they have a duty to work with their opposition to exchange information in discovery. An exchange of information will edify and illuminate disputes, leading to greater understanding. No one will accept and adopt claims or defenses which are kept in the shadows. For the opposing party to accept an attorney's position, they must understand both the position and the facts or evidence which you contend will support it. Professionalism is about advocating for an outcome and facilitating that outcome. It does not mean employing every opportunity to deny, delay, and obscure.
Whether a particular attorney loves or hates the discovery process, it is an undeniable and necessary part of litigation. Whether it is loved or hated, it is both necessary and required. And, how an attorney engages in it will speak volumes to her or his professionalism and acumen. What kind of attorney are you? Would your self-assessment match that of opposing counsels or judges before whom you practice? If every request eventually requires a motion, if every motion is opposed, if responses are never filed, you might want to rethink your self-assessment.
As Taylor's "banal" lyrics remind us, we are who we are. She sings of knowing people's nature ("players gonna play, play, play, play, play" and "fakers gonna fake, fake, fake, fake, fake.") She observes and recognizes who adopts which attitude, and resolves herself personally to "shake it off, shake it off." That is the final point of professionalism. The most adept, proactive, and professional attorney will have to deal with a serial procrastinator, an obsequiously persistent objector, and a repetitious non-responder. Professionals will recognize them for what they are, and "shake it off."
Though it may sound "banal," the outstanding attorney will remain professional despite the failures and offenses of opposing parties or counsel. Know that your demonstration of professionalism (1) is never a sign of weakness, always a sign of strength and resolve, and (2) your professionalism is noticed and appreciated by both other attorneys and the judges before whom you practice. When a professional files a motion or response, the question "Why are we here" will never come up.
