e-Discovery Team

A core problem facing the law today is the inability of lawyers to cooperate with each other. This failure is one of the primary causes of the explosive growth of e-discovery expense. It also explains the general lack of civility that now plagues our profession. Judge David J. Waxse recently added to the growing body of legal scholarship in this area with his excellent article: Cooperation—What Is It and Why Do It?, XVIII Rich. J. L. & Tech. 8 (2012).

This blog will summarize the article with the intent of enticing you to read the whole thing. You will also want to cite to this article in your legal practice, especially when dealing with lawyers who still play the old game of fight everything. The article offers practical rule based advice on how to deal with lawyers like this. Professor Gensler, whom Judge Waxse cites with approval, compares such lawyers to spoiled children.  Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 Duke L.J. 669, 734-37 (2010). This problem of petulant children in the law is very real, as I well know. If you are dealing with such counsel in any of your cases, I highly recommend that you read and use Judge Waxse’s fine article.

What Happens When a Petulant Child Gets a License to Practice Law?

Professor Gensler, who recently finished his term on the Federal Rules Advisory Committee, picks up the spoiled child theme from another professor before him on the Committee:

Professor Thomas Rowe, himself a former member of the Advisory Committee, has observed that the case-management model will inevitably struggle to control costs if lawyers continue to act like spoiled children, requiring judges to provide the equivalent of constant adult supervision.289 Perhaps this suggests that what we need is not new rules but better play.

Id. at 734.

Professor Gensler goes on to note that:

Too often, lawyers simply default to battle mode in discovery, without even considering what they are fighting over, why they are fighting, or whether it is in their clients’ best interests to fight over that particular item.294  …

Cooperation skeptics, however, would argue that the cooperative ideal is unrealistic because lawyers and clients will continue to view it as advantageous to demand everything and produce little.313 If that is true, then we are effectively left, at best, with Professor Rowe’s spoiled children in need of constant “‘adult supervision,’” and at worst with his “adversarial scorpions in [the] litigation bottle.”314 In that event, the case-management model may well need to be paired with something else—perhaps significant structural reforms—if it is to succeed.

Id. at 735, 738

I agree with the sentiments of the professors. So does Judge Waxse who is famous for threatening to require lawyers to videotape their Rule 26(f) conferences. As Judge Waxse put it in his new article:

Lawyers are more cooperative when they know that the judge is watching (providing “adult supervision”) and enforcing cooperation responsibilities.63

Cooperation—What Is It and Why Do It?, supra at 17.

Judge Waxse concludes this article by elaborating on the spoiled child theme:

Finally, it may be helpful for a few lawyers to remind them that cooperation is something they should have learned in school. Some, who cannot seem to learn to cooperate, might benefit from this list for elementary school teachers, explaining how to be a cooperative person:

LISTEN carefully to others and be sure you understand what they are saying.

SHARE when you have something that others would like to have.

TAKE TURNS when there is something that nobody wants to do, or when more than one person wants to do the same thing.

COMPROMISE when you have a serious conflict.

DO YOUR PART the very best that you possibly can. This will inspire others to do the same.

SHOW APPRECIATION to people for what they contribute.

ENCOURAGE PEOPLE to do their best.

Cooperation—What Is It and Why Do It?, supra at 17-18.

This is good advice for persons of any age. You might think that lawyers do not need such simplistic advice. But the state Bars only test for intellectual comprehension, not maturity. Once a law school graduate is armed with a license to practice law, the petulant child types who never grew up can do a lot of damage to our system of justice. This is especially true if they are raised in a law firm culture that encourages adversarial scorpion tactics. Often these firm’s look for and recruit over-zealous types. They have ways to make them even more vicious and drunk with power.

Judge Waxse recognizes the psychological dynamics at work here:

[L]awyers who become litigators often have personalities that love conflict and competition. They do not enjoy cooperation as much as they enjoy conflict. Some lawyers may also be operating under the impression that their clients are impressed by shows of aggression. In addition, combative pretrial behavior may be an attempt to avoid or postpone something that some lawyers fear, and that is an actual trial on the merits.

Id. at 12.

Judge Waxse’s advice on how to be cooperative reminds me of the advice given by Robert Fulghum in his bestseller All I Really Need To Know I Learned in Kindergarten:

All I really need to know about how to live and what to do and how to be, I learned in kindergarten. Wisdom was not at the top of the graduate-school mountain, but there in the sand pile at Sunday School. These are the things I learned. These are the things you already know:

Share everything.
Play Fair.
Don’t hit people.
Put things back where you found them.
Clean up your own mess.
Don’t take things that aren’t yours.
Say you’re sorry when you hurt somebody.

Play Fair is something you often say to the spoiled child. That directive seems especially appropriate to the practice of law. As I have pointed out before in my article Ethics of  Electronic Discovery, Part One and Part Two, Rule 3.4 of the ABA Model Rule of Professional Conduct, entitled Fairness to Opposing Party and Counsel, is designed to require simple fairness. That includes the ethical duty not to “make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” Cooperation in law is not just an academic exercise, it is an ethical imperative. We must implement this directive in adult fashion and overcome childish inclinations and personality aggressive tendencies that most of us litigators have.

Uncooperative Lawyers Are Per Se Unethical

Judge Waxse recognizes that cooperation in discovery is not an ideal, it is a baseline ethical imperative. In private correspondence with him recently on this article he told me that:

Cooperation has to be considered as part of a lawyers professionalism responsibility. Too many lawyers today are too focused on making money and forgetting their professional responsibilities. As the preamble to the Model Rules says:

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

That includes the following:

[6]  As  a  public  citizen,  a  lawyer should seek improvement of the law, access  to  the legal system, the administration of justice and the quality of service rendered by the legal profession.

Cooperation in litigation is a way to improve “the administration of justice and the quality of the service rendered by the legal profession” and a way obtain the “just, speedy and inexpensive determination” of the dispute.

These sentiments are spelled out in Judge Waxse’s article with specific references to our rules of ethics. He begins with an important  history lesson. In 1983 the ABA Model Rules of Professional Conduct were amended to remove a duty of zealous advocacy from Rule 1.3. Apparently many firms did not get that memo. The ethics rule was modified after much debate and for good reason. Model Rule 1.3 used to say:

A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.

In 1983 it was revised to say, and still says:

A lawyer shall act with reasonable diligence and promptness in representing a client.

As Judge Waxse points out, even before the 1983 amendment, Canon 7, Ethical Consideration [EC 7-39] discussed cooperation and put zealous advocacy in perspective. It stated:

In the final analysis, proper functioning of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of tribunals and make their decisional processes prompt and just, without impinging upon the obligation of lawyers to represent their clients zealously within the framework of the law.

MODEL CODE OF PROF’L RESPONSIBILITY EC 7-39 (1980).

Even with the tempering comments, lawyers focused too much on the zealous advocacy parts. They used it as an excuse to cover spoiled brat behavior that made a mockery of cooperation. For this reason the zealous duties language was eliminated in 1983 and replaced by the more mature and responsible dictates of diligence and promptness. As Judge Waxse points out, after that amendment zealous advocacy was only mentioned in the Preamble:

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

MODEL RULES OF PROF’L CONDUCT Preamble (2006).

After the amendment to Rule 1.3 the Comment still mentioned zealous advocacy and explained its limits:

A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.

MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt (2006).

Again, many lawyers just don’t understand. They act like bullies and try to justify their behavior as zealous advocacy. They need to better understand the lessons of kindergarten as Robert Fulghum said:

What we learn in kindergarten comes up again and again in our lives as long as we live. In far more complex, polysyllabic forms, to be sure. In lectures, encyclopedias, bibles, company rules, courts of law, sermons, and handbooks. Life will examine us continually to see if we have understood and have practiced what we were taught that first year of school.

Judge Waxse analyzes why cooperation and “playing fair” seems so difficult to many litigators. He concludes that it is both the over-aggressive personality disorder common to us litigators, combined with a basic misunderstanding of ethics.

There are numerous reasons why cooperation is often not happening. One is the misconception I have already discussed—that lawyers have an ethical obligation of zealous advocacy in every aspect of litigation. Another reason is that lawyers who become litigators often have personalities that love conflict and competition.

Cooperation—What Is It and Why Do It?, supra at 12.

Judge Waxse goes onto mention a third reason, greed, that I also examine in my law review article, Lawyers Behaving Badly, 60 Mercer L. Rev. 983 (Spring 2009). Judge Waxse observes:

Another reason that is not openly discussed often is that the hourly billing system used by many law firms is an incentive to engage in conflict instead of cooperation.46 It takes more time to fight over everything than it takes to cooperate. Thus, when the lawyer is paid based solely on how much time they spend working, there is a disincentive to cooperate and therefore a potential conflict with the client’s interest in resolving the litigation in a cost effective manner.

Cooperation—What Is It and Why Do It?, supra at 12. Judge Waxse does not mention another greed factor –  the big money involved for lawyers in contingency cases. The prospect of making millions of dollars can often  tempt otherwise reasonable people into bad behavior. The greed factor is often exasperated by the tendency to automatically vilify the other side, or its close cousin, to vilify all plaintiff’s lawyers or all defense lawyers. It is an unfair bias. Lawyers sitting on both sides of the courtroom can easily fall into this trap. Don’t stereotype opposing counsel. See them as people, as individuals, and treat them with respect, not abuse. As Robert Fulghum said:

Yelling at living things does tend to kill the spirit in them. Sticks and stones may break our bones, but words will break our hearts.

Judge Waxse’s Rule-Based Solution

After pointing out that cooperation is an ethical imperative Judge Waxse’s new article provides practical, rule-based advice on how to make cooperation happen, even when faced with spoiled, scorpion type non-cooperators. His advice is directed to both lawyers and judges. Indeed, cooperation is impossible in dealing with hopeless bickerers unless judges provide adult guidance and a stern hand. Judge Waxse begins by pointing to Rule 16(a) where a judge can and should be “establishing early and continuing control so that the case will not be protracted because of lack of management” and “discouraging wasteful pretrial activities.”

Next Judge Waxse points to Rule 26(b)(2)(C) where a judge is required to limit discovery in certain instances where the parties cannot cooperate enough to do it on their own. In that situation where counsel for one side, or for both sides, cannot cooperate, Judge Waxse reminds judges that Rule 26(b)(2)(C) allows them on motion, or on their own initiative, to “limit the frequency or extent of discovery otherwise allowed.” Their are a variety of grounds to so limit discovery under Rule 26(b)(2)(B), including disproportionate burden compared to benefit, the so-called proportionality principle.

Judge Waxse then refers to the duties lawyers have under Rule 26(f) to work together in good faith to agree on a plan of discovery for the case and to discuss “the nature and basis of their claims and defenses.” Next, Rule 26(g) “allows the court to insure that lawyers are not being uncooperative by making improper discovery requests and responses.” Cooperation—What Is It and Why Do It?, supra at 14. Judge Waxse points out, as Judge Grimm did before him in Mancia, that Rule 26(g)(3) provides courts with a strong enforcement tool to punish uncooperative lawyers for making an improper discovery request, response, or objection. Judge Waxse  notes that a judge could go even further and punish lawyers who act like petulant children by using 28 U.S.C. §1927, which states:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Judge Waxse sums up by saying that the rules and the enforcement statute “provide a clear path to cooperation.” In other words, Judge Waxse is saying what every parent knows, that clear, consistent, and firm discipline is the only solution to a petulant child. A judge must be ready to step in and provide adult supervision, including punishment of an uncooperative lawyer. In some cases a judge may even have to impose monetary sanctions against an attorney personally. They may have to use  §1927 to force him or her to pay the fees and costs the other side incurs because of their vexatious conduct.

Conclusion

Although I did not follow the maxim spare the rod, spoil the child when raising my children (I personally think that is barbaric), I never hesitated to take away their allowance (or computers and other toys) and impose other monetary sanctions. Judges should be prepared to provide the same kind of tough-love in their court room to lawyers who don’t cooperate.

Cooperation must always be a two-way street. It must never mean capitulation to a bully. We all know that some lawyers are like spoiled children and are incapable of cooperation. They are incapable of reasonable dialogue. It is either their way or the highway – take it or leave it. When you are unfortunate enough to have attorneys like that as your opposing counsel, cooperation is impossible without strong judicial involvement. It is as simple as that.

When one attorney refuses to cooperate, the judge must step in and enforce the rules and the statute in order to make the other side cooperate. Judge Waxse points out how the rules and Section 1927  “provide a clear path to cooperation.” But that path only works if there is a wise judge with the intestinal fortitude necessary to enforce those rules and statute against sometimes very powerful uncooperative attorneys.

If a judge will not step in, who will? The bully must not be allowed to make a mockery of justice. Our whole system of justice depends on enforcement of the law, even, or perhaps especially, when the enforcement is against lawyers. Judges – make your courtroom a bully free zone!

For judges to fulfill their duty they must, of course, first take care to find out what is really going on in a case. They should not simply assume that both sides are to blame. That just rewards the petulant, the bullies who try to blame the other side (“he started it!”). Judges need to take the time to determine which counsel is a bona fide cooperator and which a poser. It may sometimes be the case that both sides are phonies and neither are cooperative. But it may also be the case that only one side is uncooperative. It may take a series of hearings to sort things out, but when a judge recognizes a one-sided, playground-bully type situation, the judge must act, and act decisively. Fulfillment of the purpose of Rule 1 to attain the just, speedy and inexpensive determination of every action depends on it.

As a final thought I leave you with the words of Robert Fulghum, who, strangely enough, kind of looks like Judge Waxse with a bow-tie. As a sixty-year-old myself, I can resonate with these observations.

My convictions have validity for me because I have experimented with the compounds of ideas of others in the laboratory of my mind. And I’ve tested the results in the living out of my life. At twenty-one, I had drawn an abstract map based on the evidence of others. At sixty, I have accumulated a practical guide grounded in my own experience. At twenty-one, I could discuss transportation theory with authority. At sixty, I know which bus to catch to go where, what the fare is, and how to get back home again. It is not my bus, but I know how to use it.

This entry was posted on Friday, March 30th, 2012 at 4:42 am and is filed under Lawyers Duties, New Rules. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.