Case Management: How to Complete Discovery Without Growing OldAuthor(s): Elaine E. BuckloSource: Litigation, Vol. 14, No. 1, EXAMINING WITNESSES (Fall 1987), pp. 3-4, 53Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759204 .

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From the Beneh

Case Management: How to Complete

Discovery Without Growing Old When I began practice as a young attor?

ney, I was unprepared for the amount of time spent on discovery, for its delay and cost, or for the fact that most cases settled at least partly through sheer exhaustion of the emotional and finan? cial resources necessary to see a case

through trial. Law schools offer courses in trial practice. They do not offer courses in discovery practice. Maybe they cannot. Too often, a realistic course

might have to begin the first semester in law school and end three years later.

(Even that might be too short if every factor that contributes to delay were

included, along with a timetable that reflected a judge's caseload.)

I was in private practice for most of 14

years (with time out for teaching) before

becoming a United States magistrate two years ago. I spent a lot of time

thinking about the causes of delay, not?

ing the often harsh results on the liti?

gants I represented. In one case, two outside directors suffered heart attacks

(one of which was fatal), seemingly the result of the stress of litigation. Another

client, a successful businessman, has not recovered financially or emotion?

ally in the five years since the plaintiff settled for no payment two years after

bringing a suit that stated a legal claim, but that had no factual merit.

There was a time when documents were few, discovery was limited, and cases were ready to be tried fairly quickly (and could be, with smaller

dockets). Case management has be? come important because, without it, a set of interrogatories, for example, can

by Elaine E. Bucklo United States Magistrate

Northern District of Illinois

delay discovery for a year or more, use

up a relatively poor litigant's bankroll, and be completely useless. Lawyers can become so involved in the lightness of their positions on discovery issues that

they forget what spawned the litigation. Simple cases become complex and go on for years before the lawyers are told to stop spending and settle.

The goals of case management are to see that each party obtains relevant dis?

covery without undue cost, that neither

party overwhelms nor is overwhelmed

by irrelevant discovery, that the discov?

ery and pretrial process takes place with all reasonable speed, and that discovery is conducted professionally. To me that

means that, ideally, any but the complex case should be ready for trial within a

year of service of process. Discovery in

complex cases should not take more than two years unless substantive mo? tions delay the process. Good case management requires

work by the judge and the lawyers. In

Chicago, a significant part of a federal

magistrate's work is pretrial responsi? bility for civil cases. At filing, cases are

randomly assigned to a district judge and magistrate. Some judges automati?

cally send all civil cases to magistrates for discovery, sometimes including all

pretrial proceedings and sometimes limited to discovery itself. Other judges send cases when problems develop.

Being a good case manager is more difficult in practice than in theory. Even with the inclination and the time (I have a smaller caseload and a much shorter trial docket than district judges), I find that management only goes so far. I can, and do, hold monthly status hearings in cases sent to me for discovery, at which counsel responsible for the case must be

present. I limit interrogatories in most cases, set short schedules for serving most written discovery, require that

responses be timely served and that counsel seeking discovery follow up with motions if discovery is not forth?

coming and counsel cannot agree, and

require deposition schedules and keep close track to see if they are met. I also

try to resolve disputes informally or without briefs and try to decide other motions within days of briefing, if pos? sible. Frequent status hearings are par? ticularly helpful: It is impossible to put a case on a "back burner" when status?

and progress?must be reported monthly. Having monthly conferences means that problems can be dealt with

quickly. When lawyers know they are

being monitored by someone who knows the case and its status, they are less likely to play games; I hope the same knowledge allows me to sense when parties are ready to engage in settlement talks.

Even the best judge will have trouble

accomplishing the goals of good case

management without cooperative coun? sel. There are lawyers who believe that the rules of civil discovery are weapons in a war of attrition and that delay, objec

Litigation Fall 1987 Volume 14 Number 1

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tions, and motions are ways to win the war. Court rules, such as Rules 11 and 37, Fed. R. Civ. P., provide some protec? tion against unwarranted use of these

procedures, but efforts to delay?short of the kind that ends in a default or

dismissal?probably will succeed. For lawyers who want to move cases

toward trial, I offer these suggestions: 1. At the beginning of your involve?

ment with the case, ask your opponent to sit down and jointly plan discovery. You can agree to exchange documents,

names, addresses, and perhaps other information. Ideally, you can set deposi? tion schedules, or at least inform each other of the depositions you expect to take. Particularly if the case is complex or if you learn that you are dealing with a recalcitrant lawyer, you also may want to ask the judge to become involved and to order a joint discovery plan pursuant to Rule 16, Fed. R. Civ. P., or equivalent state rules.

Moving Cases Along 2. Serve any formal written discovery

promptly. Ask the judge to require the other side to do the same. Any lawyer who has given enough thought and in?

vestigation to a case to sign a pleading under the reasonable investigation stan? dards of Rule 11 should have a fairly good idea of the discovery he or she wants. Whether you serve discovery quickly or not also sends a message to

your opponent about how you intend to treat your case.

3. Think about the case. My hypo? thetical law school discovery course would attempt to develop two skills:

thinking and drafting. Too many law?

yers wait until their case is nearly ready for trial before seriously thinking about it. They could save a great deal of time

by analyzing the case at the beginning of the litigation. Having researched any legal issues and completed as much factual investigation as possible, ask what discovery is really needed and how it is best obtained. A request for docu?

ments that seeks every document in an

opponent's company files theoretically may cover all the possibilities. In reality, it will bring objections and delay. Fur?

ther, most lawyers do not want all that

paper. Do not ask for every receipt if a balance sheet will do. And think about the forms of discovery. They are not

interchangeable. Some information is best obtained by interrogatory, some by document requests or deposition. Dis

covery may be shortened altogether by using requests to admit.

4. Keep discovery simple, especially interrogatories. In the northern district of Illinois, parties are limited to 20 inter?

rogatories, except with court permis? sion. Some judges refuse to require an answer to any interrogatory that is other than an identification or contention in?

terrogatory. Interrogatory answers are

prepared by lawyers. Often, the princi? pal result of asking, for example, for each and every time Smith made a false statement about Jones, is that Jones's

lawyer will carefully go over the facts with Jones, and Jones will be much better prepared for his deposition. Inter?

rogatories also result in many more dis?

putes and motions than the information

they are likely to obtain makes worth? while. Use interrogatories to obtain names, addresses, or other facts from which to get more detailed discovery by other means.

5. Follow up on discovery requests. It

may irritate an opponent, but call before the due date to ask whether, for example, you should send someone over to pick up documents on the date the response is due. That has the advantage of remind?

ing opposing counsel that a request is

outstanding and that you expect a timely response. Never let a date for a response pass unnoticed. If a complete response is not ready, ask for a partial response.

Do not agree to long delays. Bring any lengthy delay to the judge's attention.

6. Bring motions to compel promptly. You can tell fairly quickly whether your opponent is cooperative or is a pretrial warrior. If there are insolvable prob? lems, evaluate your own position, nar?

row your requests if you have over?

reached, and bring your motion now? not six months from now. When lawyers come in and say they have asked for documents for a year and have not re? ceived them, I attribute half the delay to the lawyer who failed to bring the mo? tion earlier. Surely, at some earlier

point, the lawyers realized they were

getting nowhere. In most instances Rule 37 puts the burden of obtaining a court order on the party seeking discovery.

7. Avoid briefing discovery matters. As a practicing lawyer, I groaned when the judge heard argument on a motion to

compel and then set a briefing schedule. If your motion is clear (always attach the

discovery requests with answers and relevant correspondence) and you indi? cate that it can be decided on oral argu

merit, usually there is little to be gained by writing briefs. Give the other side sufficient notice so it cannot legiti?

mately complain about the lack of op? portunity to prepare. Then ask to have it decided now. When briefs are necessary (for example, when there is a question about the attorney-client privilege or where relevance is a complicated ques? tion) or when your opponent succeeds in

arguing for briefs, ask for a short sched? ule and stick to it.

8. Set deposition schedules and ad? here to them. I was always amazed that I could notice a deposition for Novem? ber, have it delayed until December, then delayed again and again, until it was finally taken in May. Discovery will only be concluded within a reason? able time if deposition schedules are taken seriously.

9. Respond in a cooperative and

timely manner to your opponent's dis?

covery requests. I know a very success?

ful class action plaintiffs lawyer who

says a large part of why he succeeds is that he never gets caught up in his oppo nents' games. If they want discovery, he

gives it to them. It almost always saves him time, it saves money, and it makes him look good when he wants discovery denied him by the other side.

10. Save substantive motions until the close of discovery. If the court lacks

jurisdiction over your client or the sub?

ject matter of the suit, bring your motion

immediately. There are suits so frivo? lous that it would be negligence to pro? ceed with discovery without an attempt at dismissal. But most suits survive motions to dismiss. And many motions for summary judgment brought before the close of discovery will successfully be met by a plea to put off a response until discovery is closed. In that case, you will have succeeded in showing your opponent where he should seek

discovery, but little else. When your opponent brings a motion to dismiss or for summary judgment, resist any effort on his part to stay discovery.

Your Day in Court

At one time discovery was often

stayed, at least informally, while such a motion was pending. But courts have learned that one of the biggest causes of

delay is a halt in case preparation during the often lengthy time that it takes to brief and decide a substantive motion. If

you are ready with convincing argu (Please turn to page 53)

Litigation Fall 1987 Volume 14 Number 1

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lured into making a technical objection when doing so forces you to concede a crucial factual point. Object in open court only when you have weighed the benefit of excluding the evidence

against the risks of making the objec? tion.

Some lawyers object only so that they can make a speech to the jury. The

speech is technically improper, and it

may infuriate opposing counsel and the court. Nonetheless, there are times

when you must do more than simply object. For example, if your adversary persists in asking leading questions, you may want to request the court to admon? ish the lawyer to stop asking leading questions, "so that we can hear from the witness."

Another strategic reason for making an objection is to rescue the floundering witness. If your adversary's cross-ex?

amination is making your witness con?

fused, you may object that the questions are misleading and may even make a short statement that allows your witness to clear his head.

If your witness is an auto mechanic who is being questioned about the phys? ics involved in accident reconstruction, you may want to object to the questions on the basis of competency. When you do so, however, be careful what you say. You do not want to announce to the jury that the questions are improper because

your witness is incompetent; instead, say that the questions are beyond the witness's area of expertise.

Trial objections are much more than a means of recording a perceived viola? tion of the rules of evidence. Objections provide opportunities to enhance your likelihood of success (or to guarantee failure). As with all aspects of litigation, the key is preparation. If you consider all

significant points of evidence before trial, you can integrate your trial objec? tions into your strategy. You may even

make tactical use of your opponent's anticipated objections. This final ex?

ample will show what I mean. You are defending an insurance

company in a suit filed by the estate of a

young man killed in an automobile acci? dent. The lawyer for the estate claims that the insurance company acted in bad faith when it denied coverage to the

person whose negligence caused the accident. Your defense will be that the

attorney representing the estate orches? trated a fraudulent insurance claim by inducing various witnesses to change

their testimony. Through discovery you have obtained copies of letters from the

attorney to the witnesses establishing the fraudulent conspiracy. The letters are blown up to poster size and, as you begin your opening statement, they rest

against the counsel table, wrapped in

plain brown paper. You explain your theory that the

plaintiff's lawyer induced the witnesses to change their testimony. You have the

jury's attention, not to mention your adversary's.

Now you walk over to counsel table and pick up the enlargements of the letters. You tell the jury that you will

prove the fraudulent scheme through a series of letters written by the plaintiff's lawyer, as well as by third party testi?

mony. As you say this, you carry the en?

largements across the courtroom and rest them against the jury rail.

The tension proves too much for the

plaintiff's lawyer. The lawyer rises and shrieks "Objection! Counsel is not per?

mitted to show those letters to the jury in his opening." With that objection, the

plaintiff's lawyer has effectively erased

any doubt you had about convincing the

jury that the letters are important. The

lawyer has committed the fatal error of

making an objection that is technically correct but serves only to enhance the

credibility of the evidence it seeks to exclude. 10

From

the Bench

(Continued from page 4) merits about why your suit is not frivo? lous or your opponent's motion is not

likely to dispose of the case, your mo? tion will likely prevail.

I still believe that every litigant has a

right to a day in court at a reasonable time?before witnesses are gone,

memories faded, and bank accounts

emptied. If litigants are going to respect the court system, they need to know that

they will be able to try, or settle, a case on an evaluation of its merits. We cannot undo modern technology and most

people do not want to restrict discovery significantly. The alternative is case

management. 10

Nonresponsive Answer

(Continued from page 20)

[Plaintiff's counsel]: Sir, tell the

jury how your brother reacted when he heard the news of his wife's death. A: He was crushed. He never got over it. To this very day, he is a lost and empty man, totally alone.

This testimony will probably have the effect of opening the door to evidence of the plaintiff's remarriage. Very likely the defense will be allowed to cross examine the plaintiff's brother about the new marriage?not to show mitigation of damages, but to impeach his testi?

mony about the extent of the plaintiff's present loneliness.

But the plaintiff's lawyer has a rem?

edy. Because the brother's comments were nonresponsive, they will be stricken if the lawyer immediately

makes a motion. Once the comments are

stricken, the record will be clear of any basis for impeachment, and the defen? dant again will be precluded from men?

tioning the new wife. In making a motion to strike, a few

procedural rules should be kept strictly in mind. First, the words "move to strike" should be treated as if they were

magic. Some courts have held that

merely objecting to an answer without

making a specific motion is insufficient to preserve any issue for appeal. See, for

example, State v. Chatman, 308 N.C. 169, 301 S.E.2d 71, 77 (1983). The better rule allows a party to appeal preju? dicial testimony that has been objected to, however the objection is phrased.

McCormick on Evidence, ? 52 at 127. Still, the safer practice is to use the proper form.

The motion to strike, like an objec? tion, must be particularized. When only part of the answer is nonresponsive, the motion to strike should be directed only against the nonresponsive portion of the answer. If the motion attacks the entire answer when only a portion is objection? able, the motion properly may be over? ruled. See, for example, State v. Pope, 287 N.C. 505, 215 S.E.2d 139, 144

(1975).

Litigation Fall 1987 Volume 14 Number 1

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