Discovery Problems and Their Solutions

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11Dec2013

Discovery Problems and Their Solutions

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Discovery Problems and Their SolutionsDISCOVERY SOLUTIONS

A common complaint is that attending law school may give one a solid grounding in the principles of the law, but not in the practice of the law. This is learned after passing the bar exam.

To help new litigators bridge the gap between theory and practice, three experienced litigators wrote a book Discovery Problems and Their Solutions which was published earlier this year by ABA Publishing. Unlike most such books, it is not structured around the rules of civil procedure, but around how one uses those rules in civil practice.

“If you are in a deposition and get into an argument with opposing counsel, the substance of the argument may implicate a number of rules,” says co-author Charles S. Fax. “That’s the way it works in real life.”

So, instead of being built around the rules, the book is built around scenarios that attorneys are likely to encounter. It then explains how the rules apply to that scenario.

“These are real stories we culled from our own experience as lawyers and as a judge,” he continues. “At the end of the story, the issue always gets framed as a motion to compel or for a protective order which goes to a judge. We then say how the judge would rule, describe the law and give some tips.”

The book contains more than fifty such narratives divided into four sections:

  1. Interrogatories, Document Requests, Requests for Admission, and Motions for Mental and Physical Examinations
  2. Depositions
  3. Experts
  4. Sanctions and Protective Orders

Taking a look at the section that interests us most, Depositions, we find 18 scenarios covering actions from the timing of the notice of the deposition, through its use for impeachment at trial.

One story in this section, for example, deals with a witness who wants to make substantive changes to a deposition transcript when given it for review and signature. She had testified that the plaintiff had run a red light, causing the accident, but later said she had been confused between which party was which and it was actually the defendant who was at fault.

Other stories cover how to deal with an attorney who is coaching the witness, who may attend a deposition, compensation for a treating physician’s deposition appearance, how to make objections, when an expert’s deposition should be noticed, asserting privileges during a deposition, and other problems that commonly arise.

In addition to attorneys, the book is also useful for support staff who are involved in noticing depositions, preparing and answering interrogatories, or managing electronic document requests.

While you may enjoy reading through all the scenarios, Fax says that the book was designed as a handbook for continual reference, rather than something one reads once and then places on the shelf.

“The idea is that law students and young lawyers can carry this book around with them,” says Fax. “Whenever they have a problem in the middle of a deposition, they can flip through the index and find the chapter that discusses the very problem they are having.”

EXPERT ADVICE

In February, the American Bar Association published a new book, Discovery Problems and their Solutions by Paul W. Grimm, Charles S. Fax and Paul Mark Sandler. (referencing the article above)

The Hon. Paul Grimm is a United States Magistrate Judge sitting in the United States District Court for the District of Maryland, in Baltimore. He has written three other books on depositions and evidence and is an adjunct professor at the University of Maryland School of Law, where he teaches trial evidence and civil pretrial procedure.

Fax and Sandler are senior partners and co-chairs of the litigation department of the Baltimore-based law firm Shapiro Sher Guinot & Sandler, P.A. Fax lectures at the University of Maryland School of Law and Sandler has taught at the University of Baltimore School of Law.

All three have extensive experience conducting seminars on litigation around the country. We asked the authors about their new book, their own experiences with discovery, and how the area has changed over the years.

What are the common questions that come up at the seminars you conduct?

Sandler: Virtually all of the topics that we cover in our book are matters that  litigators frequently encounter. We saw a need, especially on the part of young litigators, to have guidance in the areas on which this book focuses.

What led you to write the book?

Fax: Paul Sandler just anticipated part of the answer to this question. In addition, we saw a need in the market for a book like ours. To our knowledge, virtually all previous books on discovery in the federal courts are rule-based, meaning that each chapter starts with a recitation of a particular rule, followed by a discussion of the law pertaining to that rule. In real life, however, when a problem arises in discovery, typically it implicates more than one rule. So our book is situation-based: Each chapter begins with a story about a discovery conflict arising in a particular case (many of these narratives are drawn from our own experience), and then after the story is told, the text discusses the various rules that apply to the problem. Often there are conflicting judicial opinions that address these situations – our book covers all of the bases.

Is it useful for support staff as well as attorneys – for example, in drafting and answering interrogatories, prepping witnesses, etc?

Judge Grimm: Definitely. Although our book is aimed primarily at advanced law students and young litigators, legal assistants who participate in discovery would definitely benefit from reading it, as well.

What are the common discovery errors you see new litigators make?

Sandler: They are too numerous to mention, but the common denominator is an unfamiliarity with the rules of procedure, a deficit that we hope to erase with our book.

What about experienced litigators?

Sandler: Same answer!

How has your own discovery practice changed over the years?

Fax: The law is more complex; cases are more complex; document retention systems are more extensive; the advent of computers and electronic documents has created new vistas for discovery – and all of this has led to increasing complexity and expense in the discovery process itself, as well as the adjudicatory process that resolves conflicts between parties engaged in discovery.

What is new in the discovery area that people need to know about?

Judge Grimm: Electronic discovery, and the attendant obligation of entities and individuals to preserve their electronic records if they have reason to believe litigation is imminent. We cover this extensively in the book.

Has the decline in the number of trials increased the importance of discovery? How?

Sandler: Over 90% of civil cases in the federal judicial system are resolved before trial, either on dispositive motion (dismissal or summary judgment) or by settlement. Thorough discovery is essential in order to better understand your adversary’s case, as well as your own, and properly gauge the case’s value, as well as the likelihood of prevailing or losing on a dispositive motion. A lawyer who has not conducted thorough discovery is at a severe disadvantage in drafting or responding to a motion for summary judgment, and may not have sufficient information about both sides of the case in order to assess its settlement value and negotiate effectively.

How has the role of non-attorney staff changed in the discovery area?

Fax: Given the complexity of much of the civil litigation in the federal judicial system, legal assistants play an increasingly essential role in propounding discovery, organizing documents for production in discovery, reviewing documents produced by the adversary, and evaluating the adversary’s answers to interrogatories.

Is there anything else the readers should know about?

Judge Grimm: We hope that our book furthers the education of young litigators, law students and legal assistants regarding discovery in the federal courts. The response that we have received thus far from the legal community is very gratifying.

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