This process of civil discovery-the technique by which lawyers for opposing sides can exchange information before trial -- has been called one of the major reasons for the increasing costs of litigations.
It is clearly abused time after time by attorneys who try to go on wasteful and time-consuming "fishing expeditions" either to merely delay a case or to harass an opponent. More attention is being paid within the bar to the problem, and attempts are being made to define the problem more precisely.
One of the more complete looks at the problem so far comes in a study by University of Missouri law professor Wayne D. Brazil, who recently completed a study for the American Bar Foundation about the discovery process. Brazil interviewed Chicago lawyers, who -- cloaked with anonymity -- has some rather strong beliefs about why the process is so abused and were extremely critical of judges' handling of discovery problems.
The largest complaint from lawyers in the Chicago area who handle smaller cases was the one of delay. That term was used to refer to a wide range of discovery problems ranging from procrastination in developing a case, tardy responses to discovery requests, occasionally slow judicial responses to discovery problems and distant trial dates caused by discovery delay.
One attorney candidly admitted that when he wanted to "slow down" a case, he would make a burdensome discovery demand of his opponent. Another lawyer said he had "horsed around" opposing parties to create enough time for a financially troubled client to collect outstanding debts and avoid bankruptcy.
Attorneys who handle larger cases were even more vociferous in their complaints about discovery abuse. Brazil reported that those attorneys said much of the information requested by opposing parties is either wholly irrelevant or of only marginal utility.
But, at the same time, the attorneys said that to uncover genuinely important material, they must employ considerable tenacity, multiple discovery probes, skill in framing questions, foresight in timing discovery events and patience in sifting through the immense amounts of materials produced.
More often than not, the attorneys privately admitted, the delay in larger cases is intentional tactical jockeying. "Discovery is a business," said one. cAnother said he "just loves delay" and that he "drags these babies out forever."
Despite their use and abuse of the process, the attorneys themselves admit that the costs is getting out of hand. Many of them said the expense the process generates is often disproportionate to the value of the information it yields, Brazil discovered.
Brazil came up with various reasons for the problems in the discovery process, with "meter running" -- or performing unnecesary work primarily for the purpose of milking additional fees from clients -- a common abuse. Other lawyers think overdiscovery often is attributable to the fact that conducting discovery is "easier than thinking."
Lawyers also plainly fall into a routine in the discovery process. Something that began as a specific tactic in one case might be used in all subsequent cases even if it is not an appropriate tactic in that instance -- in other words, it becomes a part of the normal routine in every case the lawyer handles.
Some lawyers believe that attorneys who work for large firms have distinct personalities that make them abuse the discovery process. Large firm attorneys might be more likely to have "perfectionist-compulsive" tendencies that got them their top marks through law schools, Brazil noted.
"Because litigators with these psychological characteristics are especially anxious about making errors of omission, so the theroy goes, they are particularly prone to develop elaborate systematic procedures for attacking all litigation problems," Brazil said.
Surprisingly enough, the attorneys believe one solution to many discovery problems would be better, tougher judges. Brazil said a large number of attorneys reported that many judges respond to discovery conflicts with an air of undisguised condescension, impatience or open hostility -- implying that involvement in these kinds of disputes is either beneath their dignity or an unjustifiable intrusion on their time.
The most vitriolic criticisms were directed toward federal magistrates, who often are asked by judges to handle discovery problems. Many attorneys said the magistrates are for the most part "woefully underequipped in talent, time and temperament to resolve the complex discovery disputes that are referred to them."
The lawyers interviewed said in overwhelming numbers that they believe judges should step in more forcefully to handle discovery disputes and impose sanctions when the discovery system is abused.
"In fact, many litigators apparently would go a step further and suggest that the infrequency and the leniency with which courts use their sanctioning power is the root cause of discovery abuse," Brazil said.
Lawyers might feel that way in an anonymous poll, but I dare say they might react differently if they were the ones who were having sanctions imposed against them. But unless members of the bar begin to exercise more self-restraint in the area, they had better prepare for judges to control the system for them.