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Views from the Front lines: Observations by Chicago Lawyers About the System of Civil Discovery

Published online by Cambridge University Press:  20 November 2018

Wayne D. Brazil
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Abstract

This is the first in a series of articles that will report the results of a pilot effort to assess how well the system of civil discovery is working and to identify the principal problems which burden that system. The study revolves around interviews with 180 Chicago area litigators. This first essay, which synthesizes observations, insights, and complaints by interviewed attorneys, suggests that the world of civil discovery is not one monolithic whole, but consists of subworlds which exhibit clearly distinguishable features and problems. In addition to describing the principal problems which afflict the discovery system in its two major subworlds, the author reports what the interviewed lawyers suggest are the primary causes of those problems. While the litigators identify many ways in which the character of lawyering encumbers and disrupts the discovery process, they also locate much of the blame for the system's problems in the behavior of judges and the inefficiency of the judicial machinery. The interviews produced a dramatically widespread appeal to the courts to increase use of sanctions as a means of restraining discovery abuse.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 5 , Issue 2 , Spring 1980 , pp. 219 - 251
Copyright
Copyright © American Bar Foundation, 1980 

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References

1 The project director and a research associate interviewed 180 Chicago lawyers (yielding 177 completed questionnaires—in three interview sessions two attorneys participated simultaneously). The sample group that resulted will be described in detail in a forthcoming A.B.F. Research Journal article, which will report the quantitative data generated by the interviews. A few generalizations about the composition of the group, however, are in order here.Google Scholar

The interviewed attorneys represented a wide range of types of practices and a good mix of kinds of cases. Inputs from no one type of practice could dominate the data. Among the 180 attorneys, for example, 70 indicated that antitrust matters had been among the principal kinds of cases on which they had worked during the preceding five years, while 64 indicated that their practice had included miscellaneous (generally smaller case) tort matters. Forty-five had been involved in securities litigation, while 31 had handled personal injury cases arising out of automobile accidents.Google Scholar

The sample group was also well balanced with respect to the median dollar size of the cases on which the attorneys had worked. All were asked to estimate the median dollar value of the cases in which they had been involved over the preceding five years. The answers ranged from four to eight digits, the median being approximately $150,000. The figures also show that the group was well balanced on the extremes: 39 attorneys indicated that the median value of their cases had been $25,000 or less, while 42 lawyers reported $1,000,000 or more.Google Scholar

In several other characteristics the sample group was nicely balanced. While the median size of the firms in which the interviewed attorneys practiced was 20 lawyers, 55 practiced in firms of 5 or fewer and 51 in firms of 70 or more. The median year of admission to practice for all 180 lawyers was 1965. Thirty-eight were admitted before 1955 (so had 25 or more years of experience), 44 after 1969 (so had less than 10 years of experience). The sample contained roughly comparable numbers of plaintiffs ‘and of defense lawyers. The median of the responses reflecting the percentage of time the lawyers spent on plaintiffs’ and on defendants ‘matters suggests that the aggregate commitment from the group to the two different types of clients was evenly balanced. More respondents, however, devoted three-fourths or more of their time to defendants’ matters (62 attorneys) than devoted that much of their time to plaintiffs' matters (47 attorneys). Finally, the median of the figures reflecting the relative percentage of time the lawyers in the group committed to matters filed in state court and to matters filed in federal court indicates that the aggregate involvement was evenly divided between the two court systems. At the extremes, however, the sample was weighted slightly in favor of attorneys who practiced primarily in the state courts. While 62 respondents indicated that they committed 79 percent or more of their time to matters filed in federal court, 76 committed that percentage or more of their time to state court matters.Google Scholar

2 The final version of the questionnaire will be reproduced in an appendix to an article in a subsequent issue of the Research Journal. In the interim, copies of the questionnaire can be obtained from the author, who may be contacted for this purpose through the American Bar Foundation.Google Scholar

3 The data to support this proposition will be presented systematically in a subsequent issue of the Research Journal.Google Scholar

4 In addition to the two major subworlds discussed in the text, interviewed attorneys suggested that relatively discrete discovery subworlds might exist in such areas as family law, admiralty cases, and patent, trademark, and copyright litigation.Google Scholar

5 Presumably there are many cases whose traits do not perfectly match those of the “characteristic” types that dominate each subworld. Despite differences in some features, however, many such cases probably have enough in common with the characteristic cases in one of the subworlds to fit relatively comfortably. Other cases, however, may not fit easily.Google Scholar

Professors John P. Heinz and Edward O. Laumann are conducting, under the sponsorship of the American Bar Foundation, studies of the Chicago bar which appear to offer corroboration for this hypothesis of two dominant “subworlds.” Data generated by Heinz and Laumann (through interviews of more than 750 Chicago lawyers) suggest that in many professionally, politically, and socially significant respects the bar is divided into two “hemispheres” and that the primary determinant of the border between the two is the nature of dominant client types. According to Heinz and Laumann, lawyers who primarily serve corporations inhabit one of these hemispheres and have relatively little in common with the lawyers who primarily serve individuals and small businesses that inhabit the other hemisphere. See Heinz, John P. & Laumann, Edward O., The Legal Profession: Client Interest, Professional Roles, and Social Hierarchies, 76 Mich. L. Rev. 1111 (1978), and Edward O. Laumann & John P. Heinz, The Organization of Lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law, 1979 A.B.F. Res. J. 217.Google Scholar

6 There are, of course, individual cases in each subworld that do not fit the pattern.Google Scholar

7 For purposes of comparing discovery characteristics, we have defined “smaller” case lawyers as those whose median-sized case, over the preceding five years, has involved a dollar value of $25,000 or less and larger case lawyers as those whose median-sized case has involved $1,000,000 or more. By “simpler” cases we mean those in which theories of liability are relatively straightforward (e.g., negligence) and which do not require analysis of vast quantities of data.Google Scholar

8 The full complement of quantifiable data that support these generalizations will be reported in a subsequent issue of the Research Journal. Here a few examples must suffice. Respondents in the sample group were asked if the purpose of imposing work burdens or economic pressure on another party or attorney ever had been a factor affecting their use of discovery tools. Thirty-five of 44 (85 percent) of the larger case attorneys (see note 7 supra) said yes; 30 of 39 smaller case attorneys (77 percent) also answered in the affirmative. The lawyers also were asked to approximate the percentage of their cases during the preceding five years in which the purpose of imposing work burdens or economic pressure had been a factor affecting their discovery. The mean of the percentages given by 30 smaller case lawyers was 18; that given by 34 larger case attorneys was 36.Google Scholar

9 All 157 attorneys to whom the following question was posed answered it in the affirmative: “Have evasive or incomplete responses to your discovery requests ever made your discovery more difficult or accounted for your not discovering or pursuing some information?” The attorneys then were asked to estimate the percentage of their cases during the preceding five years in which evasive or incomplete responses had been sources of difficulty for their discovery efforts; the mean of the percentages offered by the 37 smaller case lawyers who responded was 47; the mean for the 38 larger case attorneys who responded was 72.Google Scholar

10 When asked if the attorney-client privilege ever had made their discovery more difficult or accounted for their failure to pursue or acquire information, only 19 of 37 (51 percent) smaller case lawyers said yes, whereas 32 of 38 (84 percent) larger case litigators said yes. The attorneys also were asked to estimate the percentage of their cases during the preceding five years in which the attorney-client privilege had been an obstacle to their discovery; the mean of the percentages provided by the 19 smaller case attorneys was 22; for the 32 larger case respondents, 51.Google Scholar

11 While 77 percent of each group indicated that on one or more occasions they had tried a case to completion believing that they possessed arguably significant information which another party had not discovered, there is a major difference in frequency. Thirty-nine attorneys in each subgroup were asked to estimate the percentage of cases they had tried to completion during the past five years believing they still knew something arguably significant about the case that another party had not discovered. The mean of the percentages provided by the smaller case attorneys was only 16, whereas that mean for the larger case attorneys was 41.Google Scholar

12 The questionnaire did not include a question about how often “harassment” was a problem. The interviewers asked each respondent, however, to identify problems with or abuses of the system. Eleven of 39 (28 percent) smaller case attorneys volunteered that harrassment was such a problem. But the percentage of larger case attorneys who voluntarily identified harassment as a problem was substantially higher: 45. Similarly, “overdiscovery” was voluntarily identified as a problem or abuse by 38 percent of the smaller case lawyers and by 62 percent of their larger case counterparts. Both problems may be a function of complexity of cases as well as of disparate resources.Google Scholar

13 Thirty-four smaller case lawyers were asked to estimate the percentage of the cases they had settled during the preceding five years in which they “suspected … that another party had relevant information (including information legitimately protected by privilege or other rules) that [they] had not discovered.” The mean percentage of the responses to this question provided by the smaller case lawyers was 31. In contrast, the mean percentage of the responses to the same question by 41 larger case lawyers was 49. The higher mean percentage in the latter case may reflect in part the complexity of the cases.Google Scholar

14 See note 9 supra.Google Scholar

15 Because scheduling difficulties may be caused, at least in part, by the lengthy delays between the filing of a complaint and trial in the Illinois state courts in Cook County, the severity of the scheduling problems described in the text may be peculiar to jurisdictions in which trial docket backlogs impose lengthy waits (several years) for trial dates.Google Scholar

16 Fifty-four percent of the smaller case lawyers voluntarily identified delay as a problem in the discovery system. Moreover, smaller case attorneys indicated that extended delay was a problem in a higher percentage of their cases than were other major obstacles to discovery. Fifty-three percent was the mean of the percentages provided by 37 smaller case lawyers who were asked to estimate the percentage of their cases during the preceding five years in which extended delay had been a source of difficulty in their discovery.Google Scholar

17 Twenty-eight of 39 (72 percent) smaller case lawyers said the purpose of gaining time or slowing down an action had been a factor affecting their use of discovery on one or more occasions. They were asked to estimate the percentage of their cases during the preceding five years in which such a purpose had been a factor affecting their discovery; the mean of the percentages was 28.Google Scholar

18 They reported that substantially earlier trial dates were available in the equity division and that the more pressing trial dates in that division generally had a salutary effect on the efficiency of discovery. When compelled by a rapidly approaching trial date to complete discovery expeditiously, counsel reportedly managed to do so. This suggests that in jurisdictions where early trial dates are available, many of the problems caused or exacerbated by the severe backlog in the law division's civil trial docket in Cook County might be substantially less severe.Google Scholar

19 Several questions were designed to yield information about the role of tactics in discovery. When respondents were asked to estimate the percentage of their civil cases during the preceding five years in which their use of discovery tools had been affected by at least one tactical purpose, the mean percentage provided by 39 larger case attorneys was 93; that provided by 36 smaller case attorneys was 71. See also note 8 supra.Google Scholar

20 One question, e.g., asked attorneys to estimate the percentage of the cases they had settled during the preceding five years in which they believed that they (or their clients) “still had arguably significant information (including information protected by privilege) which … another party had not discovered.” The mean of the percentages provided by 39 large case lawyers in response to this question was 56; the comparable mean provided by 37 smaller case attorneys was 26. See also note 11 supra.Google Scholar

21 See, e.g., note 10 supra. One attorney opined that large corporate parties attempt to use the attorney-client privilege extensively to protect sensitive information from disclosure and such efforts often are successful because the scope of the privilege with respect to corporations is unclear. Some corporations routinely circulate internal memoranda through corporate counsel's office in order to be able to invoke the privilege to protect such memoranda if their production is requested in future litigation.Google Scholar

22 E.g., attorneys who indicated that on one or more occasion a client had “attempted to influence or pressure [them] not to produce information sought through discovery” were asked to estimate the percentage of their cases during the preceding five years in which that had happened. The mean of the percentages provided by 29 larger case attorneys was 32; the mean provided by 32 smaller case attorneys, 13.Google Scholar

23 One attorney described a common discovery sequence as consisting of an overbroad request followed by overbroad objections and overinclusive assertions of privilege. See also note 12 supra.Google Scholar

24 One said it is like “going for a pig in a poke in 90 percent of discovery.” Less colorfully, another opined that “in 60 percent of discovery efforts the results do not justify the cost of acquisition.” Negative efficiency sentiments were expressed about virtually every major discovery tool. Many attorneys said that answers to interrogatories often are virtually useless because they are prepared by attorneys (not clients) whose goals are to obfuscate and to provide as little important information as possible.Google Scholar

Several lawyers also decried the alleged waste involved in taking depositions. Estimating that “less than 10 percent of all deposition pages” ever are admitted into evidence, one litigator insisted (perhaps with more symmetry than logic) that “90 percent” of the time committed by counsel to this form of discovery is wasted. Many respondents also complained about overproduction in response to requests for documents. One litigator offered a graphic example: “We have a case where over a million documents have been produced. I would guess less than 10 percent are relevant; less than that are admissible; and the very important information will be lost because [the documents containing it] are buried.” These comments cannot be taken quite at face value. Much of the effort in investigation, research, and discovery is bound to lead to dead ends. That is the nature of the process of obtaining and marshaling facts.Google Scholar

25 See, e.g., note 9 supra.Google Scholar

26 Respondents were asked to estimate the percentage of their cases during the preceding five years in which “extended delays in responding to [their] discovery requests” had made their discovery more difficult or accounted for them not discovering or pursuing some information. The mean of the percentages provided by the 42 larger case litigators in response to this question was 52 percent.Google Scholar

27 See, e.g., note 12 supra. One attorney declared that “everything in discovery is a war of attrition” and that it is more often the cost of that warfare than the merits of particular disputes that dictates the terms of settlements. Another attorney complained that opponents often “try to spend you into oblivion—[to] blow you out of the water if you and your client don‘t have resources.” An example of a more subtle form of harassment was provided by a lawyer who observed that “a nice way to tie up the other side” is to secure a protective order which limits the number of people within the structure of a corporate client with whom opposing counsel can share information and discuss the case. Such orders, according to this respondent, can impair an attorney's capacity to prepare for trial and can force him to spend time and money trying to justify a modification.Google Scholar

28 See note 27. One litigator suggested that overdiscovery by plaintiffs can have the effect of discouraging settlement. According to this theory, when plaintiffs overdiscover a case they force defense counsel to invest substantial time and money in responding to requests for information and, thereby, often push the defendant's costs in the litigation past the point where defense counsel might be interested in or could justify settling the matter.Google Scholar

29 When asked whether “the purpose of distracting another party's attention from or obscuring the existence of information ever affected the way [they had] shaped their responses to another party's discovery,” smaller case attorneys responded in the affirmative almost as often (85 percent) as did larger case lawyers (88 percent). There was a striking contrast, however, between the two kinds of lawyers with respect to the reported frequency with which the purpose of distracting an opponent had affected responses to discovery. Attorneys who indicated that their responses to discovery had been affected by this purpose at least once were asked to estimate the percentage of their cases in which this had occurred. While the mean of the responses to this question by larger case lawyers was 50 percent, the comparable mean for smaller case attorneys was 27 percent.Google Scholar

30 See note 9 supra. One respondent generally characterized his goals in discovery as “trying to get as much information as possible from [each] opponent while giving up as little as possible.” In a similar vein another attorney declared that “the purpose of responses to discovery is to give as little as possible so [your opponents] will have to come back and back and maybe will go away or give up”.Google Scholar

31 Among the smaller case lawyers interviewed, 41 percent volunteered that cost was a problem in the discovery system; the comparable figure for larger case attorneys was 55 percent. Among lawyers for whom corporations were the source of 50 percent or more of their work, 70 percent voluntarily identified cost as a problem in discovery; the comparable figure for attorneys for whom individuals provided 50 percent or more of their work was 38 percent.Google Scholar

32 In Hickman V. Taylor, 329 U.S. 495, 507 (1947), the United States Supreme Court declared that “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation” and indicated that discovery is the principal mechanism by which that goal is to be achieved.Google Scholar

33 See, e.g., notes 11, 13, and 20 supra.Google Scholar

34 Id.Google Scholar

35 According to many of our respondents, failures by lawyers to pursue relevant information with sufficient tenacity and skill often account for the shortcomings of the discovery system. The author will explore the roles played by such failures and will suggest some explanations for these perceptions in a subsequent essay.Google Scholar

36 None of our respondents admitted to “meter running,” though many insisted that such practices were widespread among other lawyers. Several lawyers who complained about “meter running” primarily represented plaintiffs against insurance companies. They accused some counsel for carriers of more than occasionally refusing a reasonable settlement demand early in the pretrial period solely to run up sizable fees by conducting and responding to discovery. In support of this accusation, at least one plaintiff's lawyer contended that attorneys for carriers often settle cases just before trial for approximately the same amount that had been demanded before costly discovery was undertaken.Google Scholar

Another respondent opined that larger firms are guilty of meter running because “they have young lawyers, paralegals, and researchers who they must keep busy and bill time for”.Google Scholar

37 One respondent complained, e.g., that “attorneys spend lots of time discovering information that is already known—mostly because of attorneys ‘bad habits, e.g., depositions are regularly too long.” But “attorneys’ bad habits” are not the only causes of this form of overdiscovery. Other lawyers suggested that it could be caused by the fear of being sued for malpractice (see infra at 244) or the need to formalize (e.g., for evidentiary purposes) confirmation of certain information.Google Scholar

38 One attorney observed that “the larger the cases, the more discovery is essentially self-generating. Big cases are routinely overdiscovered—so you end up with mounds of documents and, especially, pages of deposition transcripts that are useless and irrelevant”.Google Scholar

39 Attorneys with general practices who only infrequently get involved with any kind of litigation reportedly are especially difficult to work with during discovery. One litigator complained that this class of lawyers, members of which appear with some frequency in suits filed in state court, simply “don't understand the spirit of the rules”.Google Scholar

40 One respondent declared, e.g., that whether protective orders “work” (to overcome resistance to disclosure) depends on whether the opposing attorneys respect one another.Google Scholar

41 One insurance defense lawyer reported that in the great majority of his litigation opposing counsel work for the same specialist law firm and that the two firms have developed a “reciprocal” approach to discovery. Under this system of reciprocity, he said, “we open our files to each other so we don't battle over discovery”.Google Scholar

42 Some attorneys from rural areas or small towns (not in the sample group for the Chicago project) have suggested to the author that discovery practice in such environments may tend to be substantially freer of tactical maneuvering and adversarial friction than it is in densely populated metropolitan areas. These attorneys have suggested that social pressures, which may operate with considerable force when the few lawyers in an area must deal with one another professionally and socially on a regular basis, may help account for what they perceive as a less intense, more straightforward style of litigation than they associate with practice in large cities. Recently completed (and not yet published) studies of differences between rural and urban lawyering by Professor Donald Landon of Southwest Missouri State College appear to offer support for these generalizations. Landon has concluded that in rural settings social pressures impose greater restraints on adversarial intensity between attorneys than do similar kinds of pressures in urban settings. He also raises questions about whether the social pressures which appear to restrain lawyers in rural settings result in less thoroughly professional and aggressive representation of clients than in urban areas. Landon has described aspects of his research and findings in two papers, the first of which he delivered in June 1979 in Knoxville, Tennessee, at the National Symposium on Rural Justice. That paper, “The Rural Lawyer: Characteristics, Clients and Practice,” will be published with the Proceedings of the Symposium in the late summer of 1980. Landon delivered his second paper, “Lawyers and Localities: Community Influence and Legal Practice,” in Milwaukee at the April 1980 meeting of the Midwest Sociological Association, which has no plans to publish the proceedings of this meeting. See also Prof.: Rural, Urban Law Practices Differ, B. Leader, Sept.-Oct. 1979, at 11.Google Scholar

43 As used here, the phrase “house counsel” refers to an attorney who is a salaried, full-time employee of a business rather than of an independent law firm.Google Scholar

44 Most of these assessments were not offered by house counsel themselves (of whom there were very few in the sample group) but by lawyers who had observed the behavior of house counsel through working with or opposing them in litigation. Because our data do not enable us to determine the precise number of attorneys who volunteered critical comments about house counsel, we cannot begin to estimate the extent to which the views described in the text may be shared by other attorneys who have had exposure in litigation to house counsel. Nonetheless, we report these observations because they were made spontaneously and by a sufficient number of lawyers to seem noteworthy.Google Scholar

45 One lawyer reported that during the time he served as house counsel for an insurance company, the carrier pressured him to resist making disclosures or to refuse to produce information being sought through discovery in about one of every four cases he handled. The same lawyer also reported that after resigning his position with the carrier and moving into a practice in which he offered independent representation primarily to plaintiffs, he felt much less pressure from his clients to resist discovery requests. Other data produced by the pilot study (data to be presented in a subsequent article) indicate that corporate clients are more likely than individuals to exert pressure on their attorneys to resist disclosures sought through discovery. See also note 26 supra.Google Scholar

46 See note 22 supra.Google Scholar

47 When asked in an open-ended question to identify problems in the discovery system, a higher percentage of respondents (71 percent) mentioned something negative about the role of the courts than about any other type of problem or source of difficulty.Google Scholar

48 Among the 76 lawyers who reported devoting four fifths or more of their time to matters filed in state courts, 57 percent voluntarily identified the courts as having some negative impact on discovery. By contrast, among the 62 attorneys in the sample group who reported devoting comparably large percentages of their time to matters filed in federal court, 79 percent voluntarily identified the courts as sources of problems in the discovery stage of litigation. It must be remembered, of course, that federal cases tend to be larger, which complicates the matter and makes a simple interpretation of this disparity impossible.Google Scholar

49 For the definition of “big case” litigators, as used here, see note 7 supra.Google Scholar

50 Id.Google Scholar

51 Id.Google Scholar

52 One attorney admitted that a major reason lawyers in his firm and elsewhere construe discovery probes as narrowly as possible, so as to justify responding with as little information as possible, is that “judges almost never sanction such efforts by counsel.” Another attorney complained that even after three successive demands for the same information and filing a motion to compel, judges routinely would extend the time in which the opposing party could respond to his discovery.Google Scholar

53 The following comments by interviewed attorneys are among the most graphic testimonials to this attitude:.Google Scholar

Our job is to win for our side. We aren‘t out to do justice; that's the judges' job.

Discovery is good for our business but has nothing to do with justice. Some do-gooder invented discovery and didn‘t do good with it. It's unfortunate for the poorer people and I don‘t like this, but it's a game we play and we make dollars at it.

Most attorneys still see discovery as a game and play it to the hilt to avoid disclosure.

The first wave of discovery is a mechanical process, but after that it's all tactics and strategy.

54 One respondent bluntly articulated his “philosophy” for responding to discovery as follows: “Never be candid and never helpful and make [your] opponent fight for everything”.Google Scholar

55 See, e.g., Renfrew, Charles B., Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264 (1979); William W. Schwarzer, Managing Civil Litigation: The Trial Judge's Role, 61 Judicature 400 (1978); Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1054 (1975); Milton Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D. 475 (1974); William H. Becker, A Modern Efficient Use of the Bar and Other Parajudicial Personnel in Pretrial of Ordinary Civil Actions, 53 F.R.D. 159 (1971); Milton Pollack, Pretrial Conferences, 50 F.R.D. 449 (1970); see also B. Thomas McElroy, Federal Pre-trial Procedure in an Antitrust Suit, 31 Sw. L.J. 649, 683 (1977); S. Mark Werner, Survey of Discovery Sanctions, 1979 Ariz. St. L.J. 299 (1979). For a description of expectations about discovery among scholars and judges who helped shape the modern discovery rules see Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295, 1299–1303 (1978).CrossRefGoogle Scholar