Published By: Maxwell S. Kennerly, Esquire

Civil Discovery

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A couple weeks ago, I wrote about how lawyers abuse “meet and confer” requirements to obstruct civil discovery. This time, let’s talk about lawyers obstructing discovery by responding to discovery interrogatories themselves, rather than by having their client answer.

It’s a common progression of events:

1. Lawyer A serves a bunch of interrogatories on Lawyer B.

2. Lawyer B responds with a bunch of boilerplate objections. (See my prior post for more.)

3. Lawyer A threatens to file a motion to compel.

4. Lawyer B “answers” some of the requests either:

a. by sending a letter that generally discusses discovery (rather than a formal discovery answer actually answering the specific interrogatories) or

b. by serving a formal discovery answers signed by the lawyer (rather than signed by the party).

Tellingly, small and mid-sized casualty insurance firms that litigate and try cases all day long rarely insult plaintiff’s counsel intelligence or the court’s time with such nonsense. I wish I could say the same of the big corporate law firms I’ve dealt with, but they seem to do this as a matter of routine, repeatedly sending vague letters about discovery that never answer the discovery requests. Often, they act insulted when I gently point out that their vague letters and emails mean far less to me than their client’s sworn answers.

It may seem pedantic to just quote the Rules at length, but I have come to believe that a significant percent of lawyers — including highly-paid litigators — either haven’t read the rule or don’t care about their contents.
Continue Reading A Lawyer’s Letter Is Not A Substitute For Interrogatory Answers

“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989).

The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which years ago began pooling together all the cases of a given year together for management by a single judge, particularly when it comes to discovery disputes. (Years later, in 2009, the American College of Trial Lawyers began recommending “A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.”)

To avoid an endless hell of discovery-related oral arguments, the “team leader” judges schedule one day each week to batch together all of their discovery motions for that week. By the time 9am rolls around, the bulk of motions end up either abandoned, withdrawn, or entered by agreement, after which the contested motions are heard one after the other. Litigators love to complain about discovery court, because sitting through even 15 minutes of someone else’s oral argument when you’re ready for yours can feel like spending a day in a traffic jam, but I tend to sit back and listen, to see what works and doesn’t work for the lawyers, and to see the judge’s general approach to the discrete issues presented.

Last week, I listened to a dozen or so motions, and virtually all of them involved a party unreasonably objecting to discovery.
Continue Reading Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery

Being a plaintiff’s lawyer these days requires more than a little bit of stoicism. The federal appellate courts rarely issue rules that expand the rights of people injured by corporate greed and recklessness. Usually, the question is how far the courts are going to go to restrict their rights. There’s no need for me to repeat all of those details here; Prof. Arthur Miller’s article on the deformation of federal civil procedure details them at length, and you can read my thoughts on his article at TortsProf. As I argued,

These decisions reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes (and defendants who have well-concealed their conduct), by making factual determinations — e.g., that an allegation is “implausible” or that testimony by a qualified expert is nonetheless “unreliable” — that render it impossible for the plaintiff to satisfy their burden of proof.

There are plenty of pending cases that stand to make the situation even worse, like the upcoming Bartlett decision before the Supreme Court.

Frankly, none of this should be a federal matter; negligence and product liability law is generally a matter of state law, to be decided in state courts, unless Congress has specifically said otherwise. Yet, given the contortions courts go through to drag state-law injury lawsuits into federal courts, the federal court system is the most important battleground these days for injured consumers and patients.

Two weeks ago, the federal Judicial Conference’s Committee on Practice and Procedure approved a proposal that would amend the Rules of Civil Procedure ostensibly to streamline the discovery phase in certain cases, but which would, in practice, reward companies that conceal evidence or obstruct the discovery process.* 
Continue Reading The Federal Judicial Committee’s Proposal To Break The Discovery Rules

Hardly a week goes by without an insurance company, a big corporation, or one of their lobbying groups complaining about “the cost of litigation,” usually prefacing the word “cost” with hyperbolic adjectives like “soaring” or “exploding,” with the implication that, somehow, injured plaintiffs or their lawyers are to blame. Yet, whenever we see an actual example of a party engaging in absurd tactics to make litigation more costly and difficult, it always turns out that the defendant or their insurance company is to blame.  Although trial is typically the most expensive part of any case, the vast majority of cases settle, and so discovery is typically the most expensive part of most cases. (Earlier this week I turned in the updates for the Third Edition of our Pennsylvania Civil Discovery book, so discovery is on my mind.)

The railroad company Norfolk Southern, for example, spent over $250,000 last year funding non-railroad anti-consumer lobbying groups like the U.S. Chamber of Commerce, Business Roundtable, and National Association of Manufacturers, all of which have spent ample time decrying the costs of litigation and blaming trial lawyers for it.

Pannunzio v. Norfolk Southern, reported on by The Legal Intelligencer earlier this week, involves a train hitting a delivery van that was on the tracks. The driver sued the train company, alleging the train was going too fast, that the train didn’t sound a horn as it approached the crossing, and that the tracks were improperly designed, making it hard to see oncoming trains. The plaintiff’s claim as a whole is by no means simple –— they’re going to have to spend tens of thousands of dollars, maybe more, on experts testifying about how a railroad crossing should be designed — but the basic facts of the lawsuit are obviously quite simple, such as how fast the train was going and whether it sounded a horn or not.

Wouldn’t it be nice if there was, say, a camera on the train recording all that? 
Continue Reading Toot! Toot! All Aboard the Baloney Train!