I have an article – “Solo/Small Firm Tech – Lean, Efficient, Effective” – just published in the Spring 2019 edition of The Practitioner, the magazine of the Solo & Small Firm Section of the California Lawyers Association. If you belong to the section, check it out! If not, join and then check it out.
This piece was originally titled “Tips for Solo Survival”. But mere survival is not really a viable long-term option for most attorneys. You will tire of the struggle to make ends meet and the demands on your time without acceptable corresponding financial reward, and eventually move onto something different. The goal is to succeed professionally, financially, and personally. Here are some tips from a long-time solo trial attorney to help make that happen!
1. Market, Market, Market!
You have to commit to robust, regular, never-ending marketing – lunches, dinners, drinks, articles, professional organizations, blogs, email campaigns, social media, …, whatever works best for you! You are in a highly competitive marketplace with tons of lawyers hustling for business. If you don’t market, all the time, if you don’t compete for business, all the time, your solo practice will, at best, survive and, at worst, fail. You will not have a firm brand or in-house marketing professionals to help with client generation or partners sending you work. You’re on your own, you have to market, market, market!
2. Guard Your Professional Reputation and Image.
Your professional reputation and image go hand-in-hand with your marketing efforts. Prospective clients and referral sources will check you out before they hire you or refer you work. Your reputation and image matter. What other attorneys say about you and your work matters. How you treat opposing counsel matters. What your on-line presence says about you matters. Continually build, with everything you do, and tenaciously guard, with everything you do, your reputation. It is the lifeblood of your practice.
3. Do Excellent Work and Provide Great Personal Service.
This seems obvious, but to succeed, solos simply have to work harder, perform better, and provide better service, than firm attorneys. With many clients and referral sources, there is an inherent perception that solos cannot compete with larger firms. That’s really BS. But, you have to work hard to overcome, or more precisely, not validate, that perception. Start with promptly returning calls – do that and you are way ahead of a good chunk of your competitors!
4. Case Selection is Key – Take Good Cases, Don’t Take Bad Ones.
You must be disciplined in your case selection. More precisely, you must have the discipline to say “No” to a marginal case even when you are not that busy. Slow-pay or no-pay work, or poorly vetted contingency matters, will kill a solo practice. Cash flow dies, and better work is squeezed out or not properly attended to. You are better off hustling for new business than spending that valuable time on lousy cases that don’t make you money.
5. Enforce Fee Agreements.
Get written fee agreements and, more importantly, enforce them. If the client is not paying in accordance with the fee agreement, get out and move on to the next client. If the client will not replenish a retainer per the agreement, get out and move on to the next client. You are running a business, you need cash flow to meet your business obligations and take money home. Make sure the clients meet their contractual fee obligations. You are their lawyer, not their legal credit line. It’s no fun, and bad business, to be at the office at 10:00 p.m. on a work night, or on a weekend, working for a client who is not meeting his fee obligations. There is plenty of worthy pro bono work you can do, by choice! Don’t let your supposed-to-be-good-paying clients become pro bono ones.
6. Set Market Rates and Hold to Them.
Your attorney time is valuable. It has a market value based on your experience, reputation, and expertise. Investigate the market, ask other lawyers, determine what your rate should be for what clients, and then stick to that rate. Discounting your rates to get new clients is bad business. It is a race to the bottom. There is always an attorney around the corner who will work cheaper than you. Discounting your rates at the outset undermines your value to your practice, and the perception of your value to your client. If you want to give some money back to a good client, give a courtesy discount for work done on the bill. Don’t cut your rates.
7. Religiously Monitor Your Finances & Pinch Every Penny.
Cash flow is critical in a solo practice. Regularly monitor your collections, your billings, and your expenses to maintain cash flow. If a client is not paying when she should, call her. (Honestly, if you can’t call a client to ask for payment on a past-due invoice, you are probably not cut out for solo practice!) Get your billings out promptly – don’t sit on cashflow in the form of un-billed, un-invoiced, time. Track and promptly bill all expenses. You paid those expenses, that’s money out of your pocket. Promptly bill and get reimbursed. On the firm expense side, buy what you need to work harder, perform better, and provide better service than other attorneys. But beyond that, pinch every penny. It’s not the big, well-thought out, fully vetted, expenditures that hurt. You have likely done the cost-benefit analysis on such purchases – they will make you money. It’s the accumulated small expenditures that hurt. Get what you need – after that, pinch every penny!
8. Make Your Quarterly Tax Deposits.
Make your quarterly tax deposits. Religiously set aside the money you need to pay your taxes. Once you start slipping back on your tax set-asides/deposits, you will soon find yourself getting extensions on your returns to make the money to pay last year’s taxes. And that is a difficult cycle to get out of. It requires discipline and, sometimes, a leaner take-home than you might like but don’t get yourself into the “get an extension to make money to pay last year’s taxes” cycle. Been there, done that, it can get brutal.
9. Invest in Good Equipment & Software.
Invest in good, reliable equipment and regularly updated, established, software. These are the tools you use to efficiently produce quality work and provide good service. Yes, pinch pennies and scrutinize expenses, but don’t cheap out on the core functions of your practice.
10. Prepare for the Unexpected – Redundancy and Backups.
Expect failures – build in redundancies and regularly back up your data. Don’t let your practice become paralyzed by a hard-drive, or equipment, failure. Computers, hard-drives, and basic office machines (printers, scanners, etc.) are pretty cheap these days. Have an extra desktop, or printer, even cheap ones, ready to go in the event of a failure. And, back up your data! Any IT professional will tell you, your hard-drive, with all your data, will fail. It’s just a matter of time. Lost data, without back-up, is a disaster, even a practice-killer. Lost data, with back-up, is an annoyance.
11. Keep it Simple!
This is a pretty simple business. The law can be complicated and complex, and the legal work can be challenging. But, as a business, a law practice is quite simple. We do work, we bill for that work, we collect money in response to billings, we pay our firm expenses and taxes, and we take the rest home. The law can be difficult – the business of law is not. Keep it that way. Don’t complicate things with complex, untested, software where simpler, tested, software will do the trick. Don’t invest in complicated case management/calendaring software, where dual calendars and a regular calendar review will do the trick. Don’t maintain labor-intensive physical files when most everything either comes to you electronically or can be easily scanned and maintained electronically. Don’t mail statements when you can email them. Don’t pay bills with mailed checks when you can pay them on-line. Don’t re-invent a document every time when you can create a document template for repeated use. Don’t write your time down on a yellow pad and then enter it again into your billing program – enter it directly into the program the first time. Simplicity means efficiency. Efficiency means reduced overhead, solid hours worked and billed, better service, and happier clients. Happy clients, solid billings, and low overhead means more money in your pocket. More money in your pocket makes you happy. Keep it simple!
12. Hustle, Hustle, Hustle!
Solo practice offers many rewards. Independence. Full control of your time and schedule. Freedom to take the cases you want. It also can be quite lucrative. But, it is not for the faint of heart. You are on your own. If you don’t have work, you make no money. If you don’t get your bills out, cash flow dies. You don’t have partners making money to smooth over slow periods or to send you work when nothing is coming in. Bad case selection and poor business decisions can be disastrous. You must continually compete for business in a tough marketplace and regularly do battle with well-heeled, well-staffed, adversaries. And no matter how much you crunch the numbers, estimate billed hours, do the “hourly rate x hours you have to work” calculation (“wow, I only have to work X hours a day to make a X dollars”), and plan for expected compensation, it almost always turns out different from what you expect or plan for. And, to be succesful at it, and not just get by, you simply have to hustle, hustle, hustle, all the time, every day, year in, year out. But, for me, it’s the best way to practice. Why? Because its my gig – my practice to run, my decisions to make, my adversities to face and problems to solve, my cases to try, my clients to serve, and my money to make. And I like that.
With some minor differences, this article originally appeared in the November/December 2018 issue of San Diego Lawyer magazine. It is reprinted with the permission of the San Diego County Bar Association.
This interesting new ABA Tech Report – https://bit.ly/2EjtpAX – states that only 1/3 of solos and 1/2 of small firms budget any money for tech. The budget percentages for larger firms are much higher. These findings are a bit staggering given that solos/smalls most need the tech to effectively compete with big firms and that cost-effective, useable, efficient, small firm tech is readily available and getting cheaper all the time.
What Does “Approved as to Form and Content” Really Mean in a Settlement Agreement? The California Supreme Court May Tell Us – Monster Energy v. Schechter.
The California Supreme Court has granted review in Monster Energy v. Schechter, an interesting case involving, in part, the meaning and binding-on-the-lawyer effect of the “Approved As to Form and Content” attorney signature line commonly found in California settlement agreements. The court’s eventual ruling in Monster Energy may lead to widespread reassessment of the inclusion of such signature lines in settlement agreements. Or it may not.
The facts of the case are pretty simple. The plaintiffs in an underlying case, represented by attorney Schechter, sued Monster Energy. That case settled. The plaintiffs and Monster Energy signed what appears to be a rather standard settlement agreement with broad release language and a confidentiality provision. The confidentiality provision stated that “Plaintiffs and their counsel agree that they will keep completely confidential all of the terms and conditions of this Settlement Agreement…” . The agreement was signed by the parties and included an “Approved as to Form and Content” line signed by the attorneys, including Schechter. Schechter was later interviewed by a reporter for a legal publication and, in the interview, made comments which Monster Energy alleged violated the confidentiality provision in the agreement.
Monster Energy sued Schechter and his law firm for breach of contract, breach of the implied covenant, unjust enrichment and promissory estoppel, asserting that Schechter was bound by, and had breached, the confidentiality provision of the settlement agreement. Schechter and his firm filed a SLAPP motion to strike under Code of Civil Procedure Section 425.16, asserting, in part, that Monster Energy could not establish the probability of prevailing under SLAPP Prong 2 because Schechter was not bound by the confidentiality provision. The trial court denied Schechter’s SLAPP motion as to the contract action but granted as to the other causes. As to the contract action, the trial court held that Monster Energy showed a probability of prevailing on the merits under SLAPP Prong 2 analysis because the settlement clearly contemplated counsel as being subject to the agreement because plaintiffs had the authority to execute the settlement agreement on behalf of their counsel and counsel signed the document. The trial court stated that Schechter’s “suggestion that he is not a party to the contract merely because he approved it as to form and content only is beyond reason.”
Schechter and the firm appealed. The Fourth District Court of Appeal in Monster Energy Co. v. Schechter (2018) 26 Cal App.5th 54 reversed and remanded, finding that the “Plaintiffs and their counsel agree…” language in the confidentiality provision was a “nullity” unless and until the attorneys consented to it and that the “Approved As to Form and Content” attorney signature line did not act as consent by the attorneys to the confidentiality provision. Thus, per the Fourth District opinion, Schechter was not bound by the confidentiality provision and could not have violated same with his interview comments.
Monster Energy petitioned the California Supreme Court for review. The court has granted review. One of two specific issues to be addressed in the review is:
When a settlement agreement contains confidentiality provisions that are explicitly binding on the parties and their attorneys and the attorneys sign the agreement under the legend “APPROVED AS TO FORM AND CONTENT,” have the attorneys consented to be bound by the confidentiality provisions?
What caught my attention about this case and the granting of review is that the “Approved as to Form and Content” signature line at issue is commonly used by, and signed by, by California attorneys settling cases. It is one of those things regularly included in settlement agreements because it has long been standard practice to do so and because it has been included in the form settlement agreements circulated around firms and amongst lawyers for years. Plus, the meaning of the “Approved as to Form and Content” attorney signature line has always seemed clear and self-evident. At least to me. It seemingly means only that the document has the attorney’s professional approval but does not reflect the attorney’s intent to be bound by the agreement. That is what the 4th DCA concluded in Monster Energy – the “Approved as to Form and Content” attorney signature line means only that the document has the “attorney’s professional thumb’s up”. Thus, it is quite interesting the Supreme Court wants to take a look at the meaning and binding-on-the-lawyer effect of this rather common attorney signature line in settlement agreements. This may very well turn out to be one of those cases where an Appellate or Supreme Court opinion causes California lawyers to reassess what has, for years and years, been standard practice.
Frankly, I have always shied away from “Approved as to Form and Content” lines in settlement agreements for a number of reasons. First, I have never really understood why I, as an attorney representing a party, need to acknowledge in writing that I have read and approved the form and content of an agreement that my client is signing. Inside my privileged relationship with my client, I have presumably made sure the client understands what he is signing to resolve a case. I have never really understood what the provision actually does. Further, most settlement agreements include integration clauses, and have a provision, or provisions, where the signing party affirmatively states she has read and understands the agreement, has had the opportunity to consult with an attorney concerning the terms and conditions of the agreement, and is freely entering into same. With such client representations, why is my approval as to form and content relevant or necessary? Further, adding the “Approved as to Form and Content” provision to an agreement, signed by counsel, would seemingly make it more difficult for the client to subsequently seek, through new counsel and where appropriate, to set aside the agreement for fraud, mistake, lack of consideration, …. etc. And, if the agreement were subsequently challenged, could my signature on an “Approved as to Form and Content” line make me a witness in such an action as to my understanding of the content and meaning of the agreement, as then-counsel for the signing party, and serve to waive my otherwise available work product privilege? To the detriment of my former client? I don’t know. It has always just to seemed to me that signing an “Approved as to Form and Content” provision could lead to a lot of unintended consequences and ethical problems if the settlement deal blew up and later ended in litigation. All for a provision usually included in the agreement not because it is a material, negotiated, term but because it has customarily been in such agreements.
Bottom line, signing the “Approved as to Form and Content” line has always seemed to me a weird thing to do, largely meaningless, and fraught with possible downstream unintended consequences. Others may perceive useful reasons for this provision – I really don’t. Perhaps a ruling in Monster Energy will serve to clarify the benefits and/or risks of such provisions, and lead to reassessment, one way or the other, of their use and inclusion in settlement agreements.
We shall see.
How I work! I know, presumptuous. Why would anybody care how I work? But, please read on. Recently, I have become interested in how people work, how they physically do their everyday work – how their desks/offices are set up, what devices/apps/software they use and why, how they communicate with clients/customers, what they don’t use and why, how they utilize tech to market, how they create content, etc., There are multitudes of devices, platforms, apps and software applications available for us to do our daily work in various settings. More and more pop up everyday. I want to be as efficient as possible in my work, and to utilize the newest devices and technologies to the extent they are cost-effective and match my skill set. Plus, I like machines, gadgets and apps! Sometimes old-school, tried and tested, stuff is best; most of the time, it isn’t, and we need to continually look at new ways to get our work done. So, I’m interested in how other lawyers work, how you work, and why. As a starting point, as a prompt to perhaps get a conversation started, this is how I work.
First, as background and for context, I have a solo business litigation/trial practice. On average, I try a couple of cases a year. Try them myself with necessary audio/video assistance. I usually have 12-15 open matters at any given time. Hourly work, with a few hourly/contingent blends and an occasional full contingency matter. I share office space with two prominent federal criminal defense lawyers and a smattering of other young criminal defense lawyers – truly, a suite of trial lawyers! I like my office mates very much – fine lawyers, good people. Large space, conference room for depositions and meetings. Shared receptionist who answers the phones. Large printer/scanner if needed. Location – downtown San Diego – two blocks from Superior Court and U.S. District Court. In the past, a flex-time legal assistant, now a full-time paralegal. I work with a fine contract attorney on a project basis. And, occasionally, a research project law clerk from USD. I think, a lean, efficient, and professional setting to work up and try cases. I like it.
Dell desktops and laptops (one for work, one for trial), fast processors and lots of RAM, each with a standard desktop printer and a Fujitsu ScanSnap iX500 scanner. The scanners are pricey ($500) but well worth. Great machines, efficient feeds, quick, work flawlessly. Large 36″ monitors.
All my cases files are digital. We scan everything and maintain virtually no paper files. It took me some time to get to a true paperless office. The biggest jump was not creating and using electronic files, but, rather, getting rid of the corresponding paper. But, it doesn’t make much sense to go paperless, and still keep the paper. So, something paper comes in, we scan it, put the electronic version in its proper digital case file, and shred the paper. Small jobs we scan in-house. Large jobs, out to a vendor. This is getting to be less and less of an issue with electronic filing and service in almost every case. Physical client documents are likewise scanned and maintained electronically. To the extent we hold physical client documents, we, you guessed it, put them in bankers boxes in a secure location in the office.
My data is stored on Synology encrypted network-attached storage (NAS) devices. The NASs are in a secure location in my office and networked with the office computers. They contain multiple hard-drives which in turn maintain duplicate copies of all stored data. So, if a NAS hard-drive fails, we would just replace it, all data would be safe and duplicated again on the replaced hard-drive. All hard-drives on a NAS would have to fail at the same time to lose data. Additionally, each NAS is backed-up nightly to an encrypted external hard-drive. The NASs are easily expandable to much large capacities (up to 20TB) – just add larger and/or more hard drives.
My case and office files are located on one NAS. It’s all folder-based. Each case has a folder with sub folders for Pleadings, Discovery, etc., each containing the corresponding stuff, in .pdf format, maintained in chronological order. It’s just the digital equivalent of old-school paper case files with expanding folders and tabbed clips. Remember that?
Data/document productions from opponents and client data/documents are on a separate, much larger, NAS. This NAS is part of a recent eDiscovery upgrade to my office meant to ensure we can handle the eDiscovery data/document storage and production requirements of most any case.
For extra protection, all data on both NASs is backed up continuously on-line with Carbonite ($112/year). And, the back-up freak I am, I cycle a backup of all my data on an encrypted external hard drive to and from home on a weekly basis. I use Retrospect software to quickly duplicate and the update the data to the hard-drive. Needless to say, some very serious shit would have to happen for me to lose my data. And, with the exception of the cloud-based Carbonite backup, everything is in-house, encrypted, and password protected.
The NASs holding my case and firm data are accessible offsite through encrypted, multiple password-protected, VPNs incorporated into the Synology NAS software. They work great. I can work directly off my case files from my home desktop or anywhere with my laptop. Just need Wi-Fi, or cellular with the Personal Hotspot function on my iPhone. Except in instances of lousy Wi-Fi or cellular, there is little, if any, keystroke delay working through the VPN. This actually useable offsite file access is something that just a few years ago would have been cost-prohibitive for all but the largest of firms. Now, amazingly inexpensive.
iPhone, iPad, Dell laptop.
I try to keep my iPhone relatively free of apps. Keep the distractions to a minimum. Two iPhone apps that I do like are Bear, a simple note-keeping app, and Adobe Scan, which allows me to scan and capture documents in .pdf format using the camera. And the audio-recording app described above. Spotify for music. Audible and Kindle for on-line reading material. (I do confess that in these fast-moving, interesting, often disturbing, times we live in, I have loaded and deleted Twitter from my phone dozens of times – what’s happening now (load) to too time-consuming (delete) to what’s happening now (load) to too time-consuming (delete) to…….. I think I have a problem in that regard). Honestly, I don’t use my iPad too much for work – some email and texting. I usually have my phone and laptop with me if I need to work. I do have the iPad Trial Director app, but haven’t used it yet.
Software not discussed or mentioned elsewhere in this piece. Adobe Acrobat DC ($30/mth). Sharefile ($20/mth) to move/share large files to/from/with clients and attorneys – works great. One of my office mates suggested dtSearch software ($100, I think). I am a big fan. It allows us to search, very rapidly, all my data in any networked location (like my NASs) using just words or phrases. Super fast and very effective.
Office landline, iPhone, Outlook enterprise email across all devices, iPhone texts – all like most everybody else. And, yes, my clients have my cell number and are encouraged to call outside of office hours if need be. No worries on my end.
I also use MyCase software ($40/month) as a means to allow clients anytime access to case documents and calendars. The client gets a password-protected, encrypted, portal to whatever case documents we upload and a calendar of upcoming case events. Clients can access their portal anytime they wish. We plan to post pleadings, motions, court notices and orders, some discovery, and other assorted items to the client portals. Just rolling this out now to clients with a pretty favorable response. It’s take some staff time to upload stuff, but, the software is quite easy and I think giving clients anytime access to case materials and information is well worth the staff time. It’s interesting, I tried this software a number of years ago and, while it worked well, clients just didn’t use it. But, the world has changed rather dramatically since then and I think clients will now use and benefit from this online service. We will see!
Word-processing – WordPerfect. I know, ridiculously old-school! But, I am very comfortable with WP. Word-processing is the simplest of functions and WP is simple software. I think it’s easier and much better-suited for legal work than Word. And the reveal code function is perfect. Plus, I have well-honed templates I have developed over the years in WordPerfect and I use them all the time. Most all content sent to clients is in .pdf format to maintain version control over working drafts. So, it doesn’t matter to them. At times, I will use Word, like when I am working on a stipulation or an order with opposing counsel. But, otherwise, its WP. I know, but there it is.
Perhaps the biggest change to my practice over the last decade is my increasing reliance on dictation software. I now dictate most everything – emails, memos, motions, orders, pleadings, letters (in those rare instances where I actually send a letter in the mail) – directly into the computer using Dragon Naturally-Speaking software. I use templates and dictate the substance and content into the template. I will edit, and clean things up, using a combination of keys and dictation. But, the more I type the less efficient I become. For me, speaking content is much faster than typing content. And, the recent versions of the Dragon software are simply extraordinary. Fast, remarkably accurate, and the more you use the software the better it gets. In some ways, for me, it is the perfect combination of old-school skills and new-school tech. I cut my teeth as a lawyer dictating most everything onto micro-cassettes for typing by staff. Yes, I am that “seasoned” an attorney. That dictation cadence I learned as a young lawyer works perfect with Dragon.
For a long period of time, I used a small Bluetooth headset, but begrudgingly. I just didn’t like wearing that thing. Now, I use a high-end desktop microphone – a Yeti USB microphone by Blue – sitting on my desk next to my monitor. It works great. I can literally walk around my office and dictate in a normal voice, the mic picks it up perfectly and my computer transcribes my content with remarkable accuracy. With a few verbal Dragon commands, I create, spell check, and send emails verbally, with few if any keystrokes.
On my laptop, a Dell XPS, I have found the resident microphone works remarkably well with Dragon and I have ditched the Bluetooth headset all together. I can simply speak at my laptop and, using Dragon, it creates my dictated content with great accuracy. In fact, large chunks of this piece were dictated by me sitting on the couch, the laptop on the coffee table, using Dragon and the mic resident on the laptop.
With my iPhone, I record stuff using a simple audio recording app and then email the recording to myself. Once back at the office, we can use Dragon to transcribe the audio recording. (I tried the Dragon Anywhere iPhone app and found it clunky and slow; my view, an audio recording for later computer transcription works much better.)
So, it all kind of circles back around, but with new tech and less overhead. In 1988, coming from a hearing, I would dictate an order or a notice of ruling into a micro-cassette and, back at the office, hand the cassette to my legal secretary to type up. In 2018, coming from a hearing, I will dictate an order or a notice of ruling into my phone and then email the audio to my office for my computer to transcribe. Amazing.
Westlaw with California and San Diego County forms packets.
As part of a recent eDiscovery upgrade to my office, we use or, more precisely, are learning to use Eclipse software with all data residing on a stand-alone NAS. So far, so good!
For time-keeping and billing, I use TimeSlips, have for years. Bill monthly, invoices by email. I try to dictate my time entries directly into the program as I do the work, using Dragon. Pretty effective if I use the online eCenter software ($20/mth) component for time entry. The Timeslips program resident on my computers just doesn’t work well with Dragon making verbal time entry cumbersome. The online TimeSlips eCenter alternative works fine with the online time entries later synched to the computer TimeSlips database for billing. It’s ok, but, frankly, a bit cumbersome with a few required extra steps.
For that reason, I am considering moving my time-keeping and billing functions to MyCase which also hosts the client portals described above (all for $40/mth). It’s cloud-based and appears easy, quick, and intuitive. Plus, easy mobile time and cost entry on an MyCase iPhone app is a significant plus. There are some quirks in the billing component – for example, it can’t keep track of multiple case-specific trust fund deposits from a single client. Still assessing.
Finances – Quicken – 3 accounts – checking, trust, tax.
I have accepted credit card payments for years through my bank’s merchant services. But, it has gotten cost-prohibitive in light of newer attorney-specific payment services. I recently moved to LawPay. Works fine, simple. So far, so good.
How do you work?
That’s about it! How I work. I am always looking for new devices, software and apps, and new ways to do my work, in an ongoing effort to stay efficient and competitive in our fast-paced business.
So, how do you work?
I prefer getting documents and taking depositions as the principal means of discovery in most any case. If done right, the documents-then-depositions, with limited written discovery, approach is more cost-efficient and effective than any written discovery. Litigators, myself at times included, spend far too much time fighting over written discovery. We get locked in these little battles, these time-consuming discovery sideshows, driven by competitive instincts, by ego, by a desire to make the other side spend money, or even, at times, regretfully, by client animus towards the other side. These battles take on a life of their own, where just winning the battle, and not getting the discovery we think we want, becomes the all-consuming reason for the battle. This is not always the case, but if we are honest about it, we must admit that many written discovery disputes are more about the battle than they are about the discovery. Written discovery surely has its place in modern litigation and, at times, is well worth the fight to get it. But, a great deal of the time, it is not. With those comments as the backdrop, I offer up some suggested prescriptions for the ills that often infect our written discovery efforts – the Discovery Rules!
Before proceeding with written discovery, simply and seriously consider whether it is worth the effort. It is a reasonable assumption with most any written discovery you propound will result in a larger discovery set coming back at you, lodged objections, lengthy meet and confer exchanges, threats of motions and sanctions, actual motions and sanctions, delayed trial dates, and increased costs to the client. Do you really need that written discovery? Does it align with your case theories? Can you get the information in a more candid response to a question at deposition? Basically – is the discovery response you seek really worth the hassle of getting it?
As a corollary to Rule 1, never propound a written discovery request that you are not willing to enforce by motion. If the discovery is not important enough for you to enforce with a motion to compel, it is likely not important enough to propound in the first place. Why propound discovery that you are not willing to fight for? Do the cost-benefit analysis at the front-end rather than in the middle of the resulting discovery battle.
Use requests for supplementation of an initial discovery set, rather than propounding successive sets of new discovery requests. Propound succinct, well-crafted, meaningful discovery requests at the outset, get responses, and then seek supplementation of those responses throughout the case. If you have to fight over that written discovery in the first instance, do so! But, once that battle is over, you should have a set of rock-solid written discovery requests which the court has passed upon and are not subject to further dispute. You can then seek supplementation of your opponent’s responses to those requests throughout the case without further dispute. If you have to fight over written discovery, fight once, and do so over meaningful, well-crafted, discovery that is necessary to your case or defense.
Do not use form interrogatories for anything but the simplest of cases. They often, and most always in complicated cases, result in objections. And, in my view, rightfully so. Just the description of the “Incident” in anything but the simplest of cases is properly ripe for dispute.
Do not include in your discovery requests definitions and instructions for how to respond. Most every discovery set I receive these days contains, at the outset, several pages of definitions and detailed instructions for how to respond. Quite often, these definitions and instructions require the responding party to do much more than the code requires and infuse privilege issues where none should exist. This is all completely unnecessary. The code says what it says as to the requirements for discovery responses. A simpler, more effective, approach is to simply propound the discovery – i.e, ask the question you want to ask – and expect back a response that comports with the code. Why fight over definitions and instructions that are not required by the code?
As a corollary to Rule No. 1, but for the responding party, do not object to written discovery if you are not willing to defend your objection to the court under threat of sanction. If your opponent is following Rule No. 1, a motion is coming when you object. You thus need to determine whether the contemplated objection is really worth fighting over. Do the cost-benefit analysis at the front-end rather than after the battle has been joined by your opponent. If the objection isn’t worth the battle, why object? It’s a waste of time and money, and often undercuts the strength of your litigation position.
Do not object to written discovery and then provide responses subject to, and without waiving, the raised objection. Either the discovery is objectionable or it isn’t. Does it really make sense to object to an interrogatory as vague and then answer it anyway? No. Also, following this rule requires you to undertake the honest analysis of whether a request is really objectionable or whether you are just throwing out objections to throw out objections.
Meet and confer before responding to the discovery. If discovery is truly objectionable and you are willing to fight over your contemplated objection (see Rule 6), try to resolve the objection before responding. An email or, even better, a call to the other side identifying the issue and seeking resolution before you have to respond will serve to streamline resolution of legitimate disputes. If your opponent will amend and clean up an interrogatory before you have to respond, you will avoid a time-consuming discovery battle.
Meet and confer face-to-face. If you are stuck in discovery battle, insist that the required meet and confer efforts are undertaken face-to-face. Let’s face it – most discovery issues are just not that complicated. They can be resolved, or properly teed up for resolution, through a face-to-face meeting (or a call if distance is a problem). The lengthy written meet and confer exchanges that characterize most discovery battles are not required by the code – the moving party in any discovery motion need only establish “a reasonable and good faith attempt at an informal resolution of each issue presented” C.C.P. Section 2016.040. Further, lengthy written meet and confer campaigns are usually not necessary and often just exercises in avoidance. Try this instead – sit down in a room, face-to-face, go over the objections, solve those you can solve, tee the rest up for resolution by motion, and confirm your agreements and disagreements in a simple writing. This approach will surely be more effective and cost-efficient than a lengthy letter-writing campaign. And, it is much easier for your opponent to take an unreasonable discovery position in a Friday afternoon email than it is for him to do so, over coffee, sitting across from you in a conference room.
Try these simple Discovery Rules in your next case. Get the discovery you actually need, avoid the discovery battles you don’t need, and streamline the discovery battles you must fight.
Had the honor of sitting on a panel last night with Judges Bacal, Trentacosta and Wohlfeil of the San Diego Superior Court and Robert Francavilla of Casey Gerry for a SDCBA Civil Litigation Section program on the “Process of Trying A Case”. Part of yesterday’s “2018 Civil Lit Conference: Essentials for a Civil Litigator’s Toolbox”. I spoke on direct examination – that part of a trial that I, frankly, find the most difficult. Packed room. Great panel. Lots of fun. And I learned a few new things. Thanks to the SDCBA and the Civ Lit. Section for the opportunity!