Study criticizes cost of discovery in litigation

On October 10, a joint survey of lawyers performed under the auspices of the Institute for the Advancement of the American Legal System, reported that almost two-thirds of the lawyers surveyed felt that the cost of discovery had an improper and unwarranted impact on the legal system.  While we don't really agree with some of the conclusions expressed in the study, it is true that vigilance is required to protect litigants from unethical abuse of discovery by some unscrupulous lawyers.  It is also true that in Michigan, at least, political obstructions created by partisan influences have "reformed" the court system to exclude some citizens with legitimate claims.

The survey included responses from 42 percent of the members of the 3800 members of the American College of Trial Lawyers.  They had practiced for an average of 38 years (most younger lawyers don't have the time to respond to this kind of survey, obviously) with 31 percent representing defendants, 24 percent representing plaintiffs, and 44 percent representing both.  Their median hourly income was $350.00 (that may have an impact on the cost of discovery, too).   Eighty-six percent of respondents thought that judges seldom impose sanctions and 64 percent felt that the economic model of large firms contributed to discovery abuse. (In other words, some guy earning $350 per hour holds meetings with his ambitious and inexperienced $250 dollar per hour associates and sends them out to churn up all of the interrogatories and requests to produce that their fertile minds can produce.)

In our experience, judges are appropriately wary of punishing discovery efforts, but if presented with facts showing blatant abuse, they do act.    We were awarded sanctions against a local lawyer earlier this year, where his mistakes demonstrated either a lack of ethics, total obtuseness, or a complete lack of judgment.  Judges recognize that they cannot exercise a hair-pin trigger in matters arising out of an adversarial process that requires of its practitioners "zealous" representation of clients--particularly where the facts of a given client's case may provide compelling incentive to a sympathetic lawyer.