Or, "If You Are a Hammer, Everything Is a Nail"1
Surely it was a coincidence that just as responses were being received from the MBA Court Liaison Committee's survey of Multnomah County Circuit Court judges' "Pet Peeves," and as I was finishing up a case in which I had to keep reminding myself to "advocate" not "litigate" (I'm ashamed to say sometimes with not much success), I read an article by the Honorable Mark W. Bennett, a U.S. District Court judge for the Northern District of Iowa, entitled Reflections on Judicial Regrets.1 Judge Bennett "...was surprised by the lack of preparation, the poor quality of the advocacy, and the diminishing collegiality of lawyers (especially from out of state)," a sentiment often shared by our Oregon judges. Judge Bennett went on to observe, as have many of our Oregon judges, that
"...I remain deeply troubled by the incredibly overbroad discovery requests and obstructionist responses I observed. Plaintiff's counsel often asked for so much irrelevant information that they would have no idea what to do with it if they received it. The request for production of documents and interrogatories are almost always accompanied by a list of definitions that exceed the length of the Magna Carta, the Declaration of Independence, the U.S. Constitution, and The Gettysburg Address, combined. Their overbroad discovery requests are inevitably met by every equally silly and impermissible boilerplate objection known to human kind. Then, the defendants add 'without waiving the foregoing objections we...' and produce only a dribble of the requested information. Counsel for both sides are guilty of obstructionist conduct in discovery. Such lawyers are almost always members of the 'litigation industry.' They are not real trial lawyers. Then, there are the depositions and the objections frequently made by Energizer Bunny perpetual objecting machines—'litigators'—masquerading as real trial lawyers."
For numerous reasons, most young lawyers today have been taught and trained primarily in the process and procedure of "litigation"—that is, the use of all the discovery tools available under the various practice rules. Too often, the goal of the "litigator" is the use of techniques to delay, obfuscate, outlast, and outspend the opponent. In fact, a young "litigator" at a large national law firm once admitted to me that his firm held in-house CLEs teaching how to avoid discovery!
As a partial attempt to counter this trend, your MBA Court Liaison Committee has begun a poll of those who see and hear, firsthand, how we act in their courtrooms. We have started to collect "Pet Peeves" from Multnomah County judges to identify the behavior that judges believe is inappropriate and work against what should be the goal of every lawyer—help their clients resolve their legal problems:
We have also begun polling lawyers about their "Pet Peeves" about judges. All participants have been assured of total anonymity to encourage candor and help us all achieve our goal.
The case I recently concluded reminded me how important the following are:
- Face-to-face meetings are always better than an endless and escalating chain of e-mails, which usually resolve nothing.
- The tendency must be curtailed to "overlitigate" by exchanging seemingly endless discovery requests and inadequate responses so that we do not turn into what Judge Bennett calls "the 'litigation industry' [,which] has mushroomed, while real trial lawyers are now on the endangered species list."
- We need to teach, train, and give young lawyers the experience necessary for them to become advocates and not litigators.
I am reminded that the etymology of "Litigate" and "Litigation" is from the Latin verb "lītigāre," meaning "to quarrel, fight, fall out, argue, squabble." In contrast, to "advocate" is a verb meaning "to speak or write in favor of; support or urge by...[discussion]." See Judge Stephen Bushong's "Tips from the Bench" column for his observations about how we can become better advocates.
Watch future articles for additional judges' "Pet Peeves" and lawyers' "Pet Peeves" about judges!
"If you would win a man to your cause, first convince him that you are his sincere friend."
- Abraham Lincoln
1 Quoted from Judge Acosta at a recent Federal Bar Association CLE
2 American Bar Association Journal of the Section of Litigation, Vol. 41, No. 2 (Winter 2015)
This article was originally published in the March 2015 issue of Multnomah Lawyer, the official newsletter of the Multnomah Bar Association.