Growing up in an Italian household, our dinners consisted of salad, pasta, wine and an argument. Afterwards we all went out for ice cream with no thoughts of the argument that took place at the dinner table. That is because we thought of arguments as a sport and there was no reason to hold any grudges.  However, when I became a lawyer I was surprised to find that lawyers did hold grudges despite the fact that law by its nature is an adversarial process and we are professional arguers.

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

The answer more times than not lies in one side abusing the discovery process. The greatest offenses in discovery that elicits such negative reactions are:

Bombarding one side with hundreds of interrogatories, request for admissions and requests for documents right out of the gate with no rhyme or reason of a discovery plan other than to use Discovery as a weapon.

Opposing counsel being abusive to your client by asking improper, inappropriate and accusatory questions in a mean menacing tone. Thus, making you look ineffective.

Opposing counsel’s failure to respond to discovery other than providing garbage objections though the law is quite clear that the discovery requests are appropriate.

The non-offending attorney eventually goes to court and requests a discovery referee and I get appointed. In reviewing the papers, I can usually put the cause of the hostility in one of the following categories:

(1)     The offending attorney has a difficult client and the client expects his hired gun to get his pound of flesh from the other side;

(2)     The offending attorney got caught unprepared and is now using abusive tactics to hide their mistakes;

(3)     It is the strategy of the offending attorney to get you into the gutter because they know how to win there; or, unfortunately,

(4)     All of the above.

Looking at the history of the discovery battle before me, I see the offending attorney being difficult, interjecting improper objections, raising the tone of the conflict and playing a deflective game. Despite the earnest attempts of the non-offending attorney not to engage, he or she eventually ends up fighting the offending lawyer in the gutter throwing insults and accusations in a high volume attempt to stop the madness. By the time the matter reaches the court, the conflict has reached a fevered pitch.  The court ends up throwing up its hands saying “Pox on both of your houses, I am sending you to a Discovery Referee” because all the court see is two very unprofessional attorneys and YOU ARE ONE OF THEM!

This conflict costs your client money in attorney fees, it extends the time of the case and it makes it difficult to settle the case without paying a premium. So what do you do?

Your first priority is to protect your client. Your second priority is to protect your reputation. Neither can be accomplished if you let the discovery conflict spiral out of control. So the answer is to nip the conflict in the bud and be PROACTIVE!

(1) Every communication with the offending attorney needs to be in writing. Don’t go “tit for tat” in the e-mails. WAIT before you hit that send button! Better yet, write a letter on your firm’s stationary and send it as an attachment. That will give you time to cool off.  Catalog every unprofessional, abusive tactic in a factual tone. Hint: Write every communication as if the Judge is going to read it.

(2) Don’t take it on the chin. If the objections are garbage and you are entitled to a response, then file the motion. Start setting a record for issue, evidence and terminating sanctions. Keep filing those motions. It only hurts your client if you don’t obtain the discovery you are entitled to.

(3) If the abuse is happening during a deposition, suspend the deposition and go to court and ask for a discovery referee to sit in on the depositions. In the alternative ask that the depositions be held at the courthouse with the Judge on standby for rulings.

(4) Ask the court for an early settlement conference or suggest mediation to the offending counsel. This may sound counter intuitive, but the conflict may be a symptom of the need to resolve the case.

(5) Ask the court for a discovery referee for all purposes with the request that the offending party be responsible for the referee’s fees due to their abusive behavior.

The Moral of the Story: You are an advocate–Go Advocate!