The law is supposedly a civilized profession filled with rules and regulations and an aura of dignity.
There are a few lawyers and law firms, however, that are known in some circles as brawlers and bullies. Some even relish their reputations as the Philadephia Flyers of the legal world.
One way in which these types have been flexing their muscles recently is by abusing the process known as "discovery" in civil lawsuits. This is the process whereby participants in a federal lawsuit exchange information under the guidelines of the Federal Rules of Civil Procedure.
Some judges are beginning to get particularly tired of lawyers and firms who overlitigate at this stage of the case, and two jurists recently have spoken out forcefully on the issue in cases before them.
Ironically, both cases involved the American Telephone and Telegraph Co., the conglomerate that everyone loves to hate. In one case in Chicago, the firm representing AT&T was the one accused of abusing the system, while in the other case here, the phone company was the victin -- if such a term can be applied to the world's largest corporation -- of the abuse.
The Chicago case, as does any involving AT&T, has a tremendous amount of money at stake. MCI Communications Corp. has filed a $2.7 billion antitrust suit against AT&T that is on trial there, and as often happens when that kind of money is involved, it has been a bitter match-up.
U.S. District Judge John F. Grady, who is charged with refereeing the match, is not afraid to speak his mind. Finally, on April 17, he lashed out at AT&T's lead attorney, George Saunders of the prestigious firm of Sidley and Austin.
He said he hoped the conduct of AT&T's attorneys in the case had become "ancient history," because he regarded it as "disgracegul . . . the worst possible example that one could find of all the things that we all decry so much about what the so-called litigators are doing to the court system of this country."
He said an AT&T subpoena in the case had been drafted "by somebody who acted in the worst of faith and with utter disresect for anything that could be regarded as remotely resembling fairness in the conduct of litigation."
As for some written testimony that AT&T had taken in the case, he said page after page of it was irrelevant and immaterial.
"Everytime I look at something that AT&T has done in this case by way of pretrial discover,"Grady said in cuting off Saunders' attempts to explain, "I come away with a feeling of depression that I find difficult to describe to you and I hope that you have some sense of shame for what you have done in this case."
The case here is the government's antitrust suit against AT&T. In preparation for its defense, the phone company subpoenaed certain documents from Litton Industries.
Never mind that Litton had already been forced to turn over the exact documents to AT&T in a New York case. AT&T could not simply use them here because of a strict New York court order limiting use to the New York case alone.
AT&T asked, however, for Litton to turn over the same docmuents again under the same type of protective order. Litton balked, and U.S. District Judge Harold H. Greene ordered the company to do it. Litton refused again, through its attorneys at Howrey and Simon, and told AT&T it would once again have to search all of Litton's files for the same documents.
AT&T then filed a motion to be paid for its costs in conducting a new review, and Litton objected again.
That appeared to be the last straw to Judge Greene. He said Litton's arguments in its opposition to the cost motion were "all irrelevant, frivolous or repetitious of contentions which the court has previously rejected."
He said the discovery process had become "a trial by combat, in which the litigant most able to afford the necessary expense or most willing to spend (usually coporate) funds will eventually prevail by hiring a law firm willing to engage in needless and endless rounds of discovery maneuvers."
The point, he said, seems to be to make the opposing party "run out of either funds or stamina."
ALTHOUGH HE NOTED THAT AT&T was not a sympathetic victim because of its size, he said the principle was still the same and that the company should not be forced to go through a "wasteful and expensive exercise."
"Unless discovery and frivolous resistance to legitimate discovery requests must be curtailed if justice is to be done on bases other than the willingness to spend money and to waste time," Greene said in ordering Litton to pay the cost of the endeavor to AT&T.
Abuse of discovery clogs up the courts and unnecessarily inflates attorneys' fees. I doubt if anyone involved in setting up the rules would be proud of the ways some law firms have turned them into income-producing mechanisms to pay for fancy offices and exorbitant salaries.
U.S. Supreme Court Justice Lewis Powell noted recently that litigation costs have become "intolerable, and they cast a lengthening shadow over the basic fariness of our legal system."
Well, with a few well-placed decisions by his court, maybe an end of discovery abuse would be in sight.
For now, it looks as if the sometimes bitter discussion over the increase in the D.C. bar dues is over.
Attonreys in the District will have to pay $65 next year to practice law here. That is up from $50.
The new dues level is allowed by a D.C. Court of Appeals decision that raised the dues ceiling from $50 to $75. The bar leadership had asked for a $150 dues but met with opposition. A membership-wide vote on the topic will be held later this year.
Meanwhile, with the lower dues ceiling, the mandatory bar's plan to buy and operate a law library here is in limbo while leadership licks its wounds and regroups its forces.