In the idealized world of self-executing civil discovery, disputes should be rare. They should be worked out by reasonable counsel without the courts. But that is not the world of aggressive modern day business litigation. Discovery is not just a means to secure information and narrow issues. For some litigants, it has become a strategic tool to delay cases, frustrate opponents and drive up costs. Civil litigators publicly decry these abuses, but candidly acknowledge them as, increasingly, a regular part of civil practice. And through no fault of their own, California state courts are becoming complicit in these discovery abuses.
Due to overcrowded civil calendars, discovery motions are being calendared months out. This substantially delays resolution of discovery disputes. In San Diego, where I have a business litigation practice, discovery motions are being calendared as much as three months out by civil departments. In California, cases are supposed to be tried within one year. Summary judgment motions require 75 days’ notice. So, a three month delay in resolving a dispute over a document request is significant. And such delays lead to tactically-driven discovery abuses.
The calculation is clear and, in a tactical sense, compelling. If delaying a deposition for several months will disrupt the opponent’s discovery plan and trial preparation, why not file a motion for protective order? Or object and force a motion? In significant cases, even the risk of discovery sanctions may not discourage such actions. The cold calculation is clear: what’s a few thousand dollars in sanctions and some harsh words from a judge if one can significantly disrupt an opponent’s case? Cynical, yes. Improper, yes. Unethical, maybe. Is this the custom and practice of most trial lawyers? No. But, effective as a tactic? Most likely, yes.
The solution? Obviously, more judges and more civil trial departments. But, come on, is that going to happen any time soon? Other possible solutions – give more calendar priority to discovery motions, decrease the statutory notice for such motions, streamline briefing requirements or set up separate civil departments to expeditiously address only discovery motions.
Until something is done to expedite discovery motions heard in California courts, those same courts will remain complicit, though innocently so, in the very discovery abuses they are supposed to guard against.
I welcome your comments.
My litigation practice subscribes to Westlaw, and recently upgraded to WestlawNext. I particularly like the California Update feature which summarizes new California cases and legislative updates on a daily basis. These updates are not only available online, they are also sent daily to my email account and, in turn, to my Blackberry. But, in the past, I have gotten bogged down actually reading new cases as they appear in the update. I would either print them and stuff them into my briefcase for later reading, or convert them to .pdf and move them to a “Stuff to Read” file on my laptop. Either way, the files grew and often times the cases went unread as I moved on to other things. For me, and I suspect for many others, the best way not to read something is to stick it into a file of stuff you plan to read.
But, now, I am keeping up with new case developments using a Kindle with WestlawNext. Cases and other content can be sent directly from WestlawNext to a Kindle. (You can also do it out of Westlaw with an extra step.) It really works great. I send new cases summarized in the California Update directly to my Kindle. I put the Kindle in my briefcase and read new cases over the course of my work day; for example, while waiting in court for a hearing or during a deposition lunch break. And, I take it to the gym and read cases while putting my time in on the stationary bike or elliptical. It’s a simple and very efficient way to keep current. I find that I am now reading new cases shortly after they come out, rather than weeks or months later, or, sometimes, not at all. Give it a try.
I moderated a San Diego North County Bar Association dinner program this last week on attorneys and the rise of social media. Thanks to the North County Bar Association (www.bansdc.org) and President Larry Campitiello (@LarryCampi) for the opportunity. Thanks to panel members Leah Swearingen of Swearingen Communications (@LeahSwearingen), Rosalie Kramm of Kramm Court Reporting (@rosaliekramm) and Heather Rosing of Klinedinst PC (www.klinedinst.com) for a great presentation and lively discussion.
Pre-program conversations with three seasoned (read, older) attorneys struck me. All are fine, well-respected, highly-capable attorneys in the prime of their professional careers handling significant cases.
Attorney #1 described social media as, paraphrasing, Facebook dribble for teenage girls.
Attorney #2 – “This stuff is scary”.
Attorney #3 – “I don’t understand it and don’t have time for it.”
That about says it all for many attorneys and social media. It’s below me. It’s risky. I don’t understand it. It’s not important to my practice.
But, these common impressions are being re-examined, quickly, by smart attorneys. The interconnected world of social media is here to stay and, if approached wisely, presents huge potential for servicing clients, marketing practices and building reputations. Put it this way, when your clients started using emails and cell-phones, didn’t you get an email address and buy a Blackberry? This is, in my view, a no-brainer. And if those attorneys noted above don’t at least make an effort to understand social media, they may soon find those significant cases going to somebody who does.
Bob Dylan wrote “You don’t need a weatherman to know which way the wind blows.”
By the way, Dylan is on Twitter and Facebook.
Why do many attorneys readily dismiss social media?
Recently, I wrote that the loss of control and fear of the interconnected may be possible reasons. The world is no longer hierarchical. Plus, it’s “always on. ”
A book I am reading suggests another, more basic reason (that is not necessarily endemic to attorneys.) That is, it is easier to rely upon old lines of thought that serve one well than seek out new ones. In the “The Master Switch” by Tim Wu, the author quotes theorist, Joseph Schumpter:
All knowledge and habit once acquired becomes as firmly rooted in ourselves as a railway embankment in the earth. . . The very nature of fixed habits of thinking, their energy saving function, is founded upon the fact that they have become subconscious, that they yield their results automatically and are proof against criticism and even against contradictions by individual facts.
Put simply – you can’t teach an old dog new tricks. But, what if those “new tricks” – those new lines of thought – are, at best, beneficial and, at worst, dangerous to your livelihood. One must shed off the old and embrace the new. At the very least, one must understand the new before making the decision to reject it.
Tonight I am moderating a San Diego North County Bar Association program on attorneys and the rise of social media: “Tweets from Web 2.0 – The Rise of Social Media and Why Attorneys Cannot Ignore It.” I am interested to hear the questions and comments from the attendees.
I invite your comments on social media and attorneys.
Attorneys are generally curious, bright, articulate, and unafraid to interact with others. The fast, interconnected world that social media represents should be a natural for them. And a great many attorneys are jumping in. Anything that allows attorneys to work smarter, expand professional reputations, assist clients, and make more money will ultimately be embraced, provided it is ethical.
Why, then, are so many other attorneys reacting so vehemently to the meteoric rise of social media?
Some cite ethical issues. Yet attorneys deal with thorny ethical issues all the time. Some cite the risk of an online presence. But attorneys deal with risk all the time. They litigate serious cases and structure large transactions involving other people’s lives and money. Some say they don’t like the “always on” aspect of social media. But, come on, how many attorneys do you know are afraid to voice an opinion or troll for business over drinks? Most attorneys, by nature or necessity, are always on.
Others dismiss social media as a fad that won’t last. Really? Facebook is helping to oust dictators across the Middle East. The White House posts on Facebook and Twitter. Queen Elizabeth tweets! The “it’s just a fad” argument is not credible.
So what is it? I think that two core things make many attorneys very uncomfortable.
First, social media blurs the lines between one’s personal, public, and professional life. Attorneys operate in a complicated professional world. There are confidences to protect, privileges to defend, relationships to grow, reputations to cultivate. Many attorneys feel that if they embrace social media, they will let the genie out of the bottle. They will lose control over their various lives and the boundaries between them, and this loss of control will somehow hurt them or threaten their livelihoods.
Second, I think many attorneys fear the interconnected, no longer hierarchical, world that social media represents. Gone are the days of sitting in a big office, above the fray. Social media is a world where peers and clients rate attorneys in real time on digital forums viewed by thousands of people. Clients expect immediate responses — not a call back on a land line the next day. Faxing is dead, email is waning and texting is a “new normal”. Potential clients are on line, pre-qualifying attorneys. Existing clients are online finding an alternative when their expectations are not swiftly satisfied. Small firms and solo practitioners compete with mega-firms for big clients and complicated high-end cases. And, attorneys can no longer rely solely upon colleague referrals and a healthy reputation to sustain a practice. Simply put, because of social media, attorneys are increasingly down in the real-time muck with everybody else. And a great many attorneys don’t like this level playing field.
These are legitimate concerns. Many can be addressed with a clear strategy and the appropriate on-line tools.
But, attorneys really don’t have the luxury to choose to be involved in this new interconnected world. We ARE already in it! Attorneys may choose not to embrace it. But, they must recognize its significance. Their future choices will surely have personal, professional, and economical consequences.
I welcome your thoughts on attorneys and social media.
Social media is not something to be ignored by attorneys. It is a big shift, a game-changer, with attendant risks and benefits. It is also another “great equalizer” for small practices competing with bigger firms for work. I invite other practitioners to weigh in on this tectonic shift to social media.
A case in point. A couple of weeks ago, I was talking with a lawyer friend of mine. He is a death-penalty qualified, criminal defense attorney and has been practicing about 30 years. He is a fine lawyer, someone with a wealth of courtroom experience. I would turn to him for my family and friends if the need arose. But he has not been a big embracer of new technologies. In our discussion, he seemed genuinely rattled about the future of his practice. He explained that he had been in court waiting to make an appearance. A young lawyer sat down next to him, pulled out an iPad and started to conduct business, a not-so-uncommon event these days. For my friend, it was a wake-up call, maybe even an epiphany. “How can I compete with that?”, he thought. His comments had undercurrents of real concern and perceived unfairness. Why should he have to adjust to all this new stuff to compete for work this long into his career? While I don’t share his sense of unfairness, I was struck by his great concern that new technologies will hurt his business. It is one thing not to embrace a new technology if you can effectively compete without it. It is another for my friend to feel that not embracing new technologies will hurt his business. If this smart man believes this, it means that something big and structural is happening.
My recent discussions with a marketing consultant reinforced that point. Specifically, it was the difference between our discussions of several years ago and our discussions over the last few months that struck me. The last few years, I had been working for a single client. That gig had ended earlier this year and I was focusing again on generating new cases for my litigation practice. I was talking about that with this consultant. This person is highly qualified, very experienced and very successful. She has assisted many San Diego law practices and professionals. Several years ago, our discussions had been about my stationary, how to create a static website, what business sectors I should focus on, target audiences, whether I should host events, etc. Our recent discussions are completely different. They focus on social media, LinkedIn, Facebook, Twitter, search engine optimization, Google algorithms, digital media, content-spamming, social media protocol, something called The Cluetrain Manifesto, . . All very interesting stuff. Yet, it was not the substance of these discussions that struck me. Rather, it was simply the fact that we are having them. If this highly qualified, very experienced, very successful marketing expert is talking about this stuff, this is the real deal.
For further proof, one need only look around. Large corporations, major news entities, magazines, law firms, even the White House, are all on Facebook and Twitter. Why is that?
There has been a big shift. The rules have changed. Social media is a force to be reckoned with. And attorneys ignore it at their peril. Do you agree? Social media also presents great opportunity. Computers, legal software, emails, cell phones, cable/T1 internet access, online research, websites, smart phones, the shift from paper to digital, texting . . these things are “great equalizers”. Now, smaller firms can compete for bigger and more complex cases that once only went to larger firms with enough bandwidth and personnel. Social media is leveling the playing field even more, offsetting the marketing power of large firms with big budgets. What do you think?
Next time, I’ll comment about perceived ethical dangers of this shift to social media.