The legal process is governed by the Rules of Civil Procedure, adopted about 60 years ago in most states. Before then, the legal system could best be described as “Justice by Ambush,” because neither party was obligated to tell the other party anything about his case, his evidence, or his witnesses. Everyone just showed up in court and presented whatever evidence and witnesses they had, of course trying as hard as possible to create major surprises to which the other side could not quickly react and rebut. To correct this obvious problem, the Rules of Civil Procedure were adopted, basically requiring “full disclosure” of all evidence well in advance of trial so both parties could be properly prepared. That process worked very well for a while, but “full disclosure” 60 years ago meant something far different than it does today.
When I first started practicing law in 1969, there were no computers; indeed there was no photocopying equipment, no post-it notes, no portable dictating equipment, really no electronics of any kind. When we wanted to look at records maintained by other parties, we had to go over to their offices, read the documents while they were there (often in dingy basements shifting through boxes and boxes of junk). We then made handwritten notes about the documents (lawyers could not type in 1969), and put paper clips on documents we wanted the other side to bring to court (and hoped that the clips would not fall off accidentally or intentionally). We completed our document discovery usually in a day or two. It didn’t cost much, took very little time to complete, and was a reasonable approach to equalize the playing field for both sides.
Not today. Now there are far more records than ever because everything is typed up and digitally stored, and the records are now more easily accessed by high-speed scanners and computer programs. Companies maintain email systems that produce hundreds of thousands of emails in a very short period of time. So today “full discovery” often results in the production of hundreds of thousands of pages of records, all of which now have to be digitally scanned, read, sorted, indexed, summarized and Bates stamped. Software programs have been designed to manage this enormous volume of data. Legal seminars are now offered regularly to teach lawyers how to manage and advise clients about “e-discovery.” In fact, an entire litigation support industry has developed to assist in the enormous effort required to obtain, review, index and understand hundreds of thousands of pages of records. Law firms now have teams of legal assistants to do this work, a profession that did not even exist in 1970. And both sides have to go through this unbelievably intense and expensive exercise.
My favorite story here is an order I received from a judge requiring my client to produce all emails related to a given topic sent or received by 25 company employees over a 6-month period. My objection based on the anticipated extraordinary cost of this request was summarily dismissed because the Rules of Civil Procedure allow “full discovery.” It actually cost my client $500,000 to comply with that order, and the other side got 5 documents it liked (all of which could be explained). Was that exercise worth the expense? Did the end result of the case differ one iota from what would have happened had this discovery not been done? Was justice served in some way by this effort?
Does anyone really believe the American justice system is better today than it was 50 years ago because of the intense discovery that is now routinely undertaken in a large number of cases? One thing for sure, lawyers are far better off. If you’ve read my novel The Litigators, do you think the parties in that case benefited from the “full discovery” their lawyers undertook?
Join me next week for a break from the usual topics with How do you get a good book published?
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