Wednesday, April 2, 2014

Know when to hold 'em and know when to fold 'em, when to walk away and when to run

Counsel can become difficult to get along with sometimes. Lawyers are typically reasonably sure of themselves. They typically believe that they are right, or at least believe they can convince others that they are right. That is what lawyers do, and being confident and persuasive is important. The simple fact of the matter, though, is that no one can ever be right all of the time. Thus when two attorneys enter a procedural hearing, each believing her/himself to be right, it is probable that, right or wrong, the judge will have to disagree with one of them.

Thus it can often be with discovery disputes. These can be about documents, depositions, objections or even designations. One judge recently said "I have noticed a trend toward 'gamesmanship' in lieu of professionalism." Well phrased, but certainly not an isolated interpretation.

Last summer I was discussing Florida' motion process with an adjudicator from out-of-state at a conference. She told me that many of her motion to compel hearings are a waste of time because there is no dispute. One side has duly requested the documents. The time has passed for response. Phone calls have been made, emails written, proposed motion supplied. The motion is filed/served, and a hearing set. Then it is in the waiting room before the hearing where the attorneys finally discuss the issue, and the non-responding party commits to soon produce the overdue documents.

They then come into the hearing and instead of laying this simple set of facts before the judge and asking for an order compelling production within the (now) agreed ten additional days, the moving party engages in an argument in support of the motion. Then when it is the opposition's turn, they candidly admit they have no opposition, there is no real issue, this could all have been avoided, could the order afford them ten additional days? This has wasted the judge's time. If there is no dispute, why is an argument needed, why not just lay it out, and ask for the order both sides now agree upon?

There was a cereal commercial years ago in which three brothers are engaged in breakfast. Before them is a bowl of cereal, and the two older brothers argue about which of them should try it first, "I'm not gonna try it—you try it!" Back and forth they argue. Eventually, the agree to foist that honor on the youngest brother, "Mikey." It was an iconic bit, which illustrated a point about trying new things. I find it similar to some disputes about depositions.

We see instances in which a party will not produce their witness for deposition until they have deposed the opponent's witnesses. Arguments such as "I will produce (the adjuster, employer, claimant) as soon as they have given me the chance to depose (the adjuster, employer, claimant) first." Asked why a particular side should get to go first, there are a variety of arguments. A favorite is "because that is how it always done." Another that is interesting is "because I asked first." There are also logical arguments sometimes delivered.

Recently a case was described to me in which the dispute was not about the order in which the depositions of each opposing parties witnesses would occur. This dispute was about the order in which one side would be allowed to depose each of the other side's witnesses. The crux of the dispute was the venerable "rule" whereby non-party witnesses are excluded from attending depositions of other witnesses until their own testimony has been preserved. In the described instance, an attorney wanted a particular order of deposing the other side's witnesses so as to prevent certain later witnesses from attending certain early witnesses testimony. This dispute required a hearing to sort out.

There are similar instances sometimes described about the designation of corporate representatives for trial. One side will refuse to make that designation until the other party has been deposed. In multiple corporate entity cases (think of construction disputes with multiple potential employers and indemnification disputes) multiple sides will have a corporate designee to testify about those corporate facts. In those instances, the parties will sometimes similarly disagree "I will designate a representative, but not until he/she designates his/hers."

All of these disputes happen. They can consume a great deal of time. Lawyer's time, client's time, judge's time. Often, there is no authority on the books to assist with determining them, and so they are often likely to be disputes "in the sound discretion of the trial judge." How are they decided?

I would suggest that it is powerful to have a logical argument. I discourage the arguments "because that is how it always done" and "because I asked first." I would suggest that persuasion is more likely with a logical argument that explains why it is important that your methodology be adopted. For example, "if we depose that witness before the records custodian, we may well have to depose that witness again after we receive the records through the record custodian."
Counsel should remember that one of every two parties that come to a motion hearing will likely lose. Disputes that get to that stage sometimes become "all or nothing" for one party or the other. Try not to engage in disputes that can be resolved.

For example, certainly the location of a deposition may be important in a particular case due to expense or otherwise. But is location that important otherwise. Years ago a lawyer related a situation to me. She wanted to depose a witness, who refused to come to her office for that purpose. She likewise refused to depose the witness at his office. Both were seeking the "home field advantage" and they were at loggerheads about it. They took the dispute to the judge. The judge ordered the deposition to occur at a court reporter's office. That solution, neutral ground, could have been reached by these two at any time, without the judge's involvement. As the lawyer related the story to me, I remember wondering why they had not compromised instead of going to hearing (I guess I missed the point of the story).

In a similar dispute as to location, a Federal Judge in Florida issued a now famous (viral) order regarding settling differences the Court deemed to be unworthy of judicial intervention. In Avista Mgtt v. Wausau Underwriters Insurance (M.D. Fla, 2006), the court ordered the attorneys to engage in a game, with specific rules, at a specific place:

"[T]he Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the [Courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006."

One wonders how such a dispute such as that reached the point that such an order was necessary? Should "rock, paper, scissors" be the "go-to" solution?

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