Surviving Discovery Disputes
Regardless of the area of law, at some point, every lawyer must endure the challenges caused by a dispute with an opposing lawyer over some aspect of discovery. Unfortunately, for the expedient resolution of litigation, these discovery disputes occur far too often for most lawyers even though most would do the same if they were in the same situation as opposing counsel.
Discovery disputes inherently are like a tug-of-war, ever dynamic, as lawyers push and test each other’s boundaries and patience. It is also not uncommon for clients requesting that an attorney pursue a particular inquiry and avenue of discovery with the hope and belief that this course of action will expose where the opposing side is vulnerable and open a path to winning the case. The key is to balance the need to be assertive with the requisite level of compromise that may be prudent.
The following are some tips for surviving discovery disputes. They may help persuade both an adversary and the deciding judge to your side.
Meet and confer with opposing counsel
The professional rules of conduct require attorneys to act in good faith and engage in fair dealing. Most courts require that counsel for all parties meet and confer to resolve the dispute in good faith prior to bringing the dispute before the court. This demonstrates that an attorney is simply trying to advance his or her client’s position on the merits, rather than simply engaging in a fishing expedition or being difficult for the sake of being difficult.
Do not hesitate to initiate a dialog with opposing counsel. Clearly state your position and the underlying legal basis that supports this position. Try to remain open-minded and avoid being skeptical. The earnest pursuit of a valid legal argument will go a long way in helping to negotiate a resolution that is fair and acceptable to all parties. Even if this course of conduct should fail, these efforts will demonstrate on the record that the issue has been thoughtfully addressed and all efforts were reasonably exhausted to informally resolve the matter before bringing it before the court and expending its valuable resources, perhaps unnecessarily.
Find the legal authority for your position
It is hard to proceed if there is no authority for the discovery position that an attorney is taking. There is no substitute for doing the research in advance and having a command of the governing law. This will avoid wasting time on some assertion that will surely be unsuccessful and even stop opposing counsel in his or her tracks. It is indisputable that knowledge of the applicable law on a specific discovery issue in similar situations establishes credibility to the judge and jury.
Always remain reasonable and willing to compromise
Few discovery disputes are “black and white” as to how they should be resolved. Often, discovery disputes involve both sides with legitimate competing interests and rights that must be balanced fairly. In other words, rarely is one side completely right and the other side is completely wrong. The willingness to compromise demonstrates that an attorney acts reasonably with balanced judgment.
Make sure the client is well-informed during the course of the dispute
When traversing through a discovery dispute, it is easy for an attorney to focus on the law, opposing counsel, and the presiding judge. However, never forget the client. Clients have expectations, especially about the discovery process. It is bad enough having to inform a client of a legitimate turn of events that negatively affect the client. It is even worse to do so
It is, therefore, crucial to communicate with clients about how the discovery process works, why it is necessary to engage in a proper type and/or scope of discovery, the rewards and risks inherent to the discovery process, and that all of the lawyers involved have duties to work in good faith and act in accordance with all the rules of professional conduct.
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