Friday, July 25, 2014

Dealing with Difficult Lawyers Creatively--Part II (Discovery)

The previous blog on dealing with difficult lawyers offered suggestions on situations outside of discovery and promised a later blog on the area where a great deal of inappropriate conduct occurs--in discovery.  This blog post focuses specifically on how to deal with difficulty lawyers in discovery. Although proposed amendments to the Federal Rules of Civil Procedure are on the way to going into effect on December 1, 2014, few will prevent the kinds of shenanigans of which I speak below.  For an explanation why I believe the proposed amendments likely will not meaningfully reduce litigation and discovery costs, see  (even if the amendments are not fully effective in reducing the length and expense of litigation, anyone who litigates in federal court should review the paper because it summarizes the changes approved by the Rules Committee and likely to go into effect Dec. 1, 2014.  Many of the do change discovery practice, e.g. presumptively no more than 5 depositions, no more than 15 interrogatories, etc.  Although the changes may not greatly reduce time and costs, the lawyer needs to know these new rules to plan and proceed intelligently).

Try as they might, the Rules Committee cannot come up with a rule that will make lawyers behave in a civil fashion.  So, it is up to each lawyer to be prepared to deal with opposing counsel.  If she is prepared, she can avoid allowing such counsel to obstruct her search for pertinent information and prevent counsel from succeeding in distracting her focus by disruptive behavior.

Tuesday, June 17, 2014

Dealing with Difficult People in Litigation Creatively--Part I

Recently, I substituted for my colleague in teaching his Professional Responsibility class.  The topic assigned was "Litigation Abuse."   We covered the ways in which one can, through Federal Rules of Civil Procedure (e.g.,Rule 11, Rule 26, and Rule 37), seek judicial relief from the extreme misconduct addressed by those Rules.  The problem, however, is that most litigation abuse falls outside of the extremes.   The Rules are not well-suited to deal with just plain boorish conduct of a lawyer, party, or some other person of the legal system.  Although Rule of Professional Conduct 3.4 outlines behavior that would be considered "unfair," and theoretically subject to discipline, this Rule outline extreme forms of unfairness.  Moreover, the Rule is not one for which discipline is sought very often.

Nevertheless, many lawyers suffer needlessly because they think putting up with people who act like jerks is part of the job.   Over years of observing lawyers who do NOT assume unacceptable behavior has to be tolerated, I describe below how these lawyers taught me (1) to stop putting  up with the inappropriate behavior of others and (2) to develop ways to avoid reacting to others inappropriately myself .  These methods fall into two parts--general dealings with others in litigation (this post) and conduct that occurs often in discovery (a future post).

Monday, March 24, 2014

The Emperor Has No Clothes, But Does Anyone Really Care?

As some know, I believe that one of the most of significant parts of both the Carnegie Institute for Teaching and Learning's Educating Lawyers and the Clinical Legal Education Association's Best Practices for Legal Education was that law schools do a poor job in cultivating our students to develop a sense of what it means to be a professional, in challenging students to consider their principles and how those will be tested in practice, and finally in reflectively deliberating on an ethical or professional question to reach a decision that reflects practical judgment.

I believe that these findings of two thorough studies of law education are worth heeding for many reasons.  The one that hits home the hardest is the manner in which these reports take empirical studies and their own investigations and link the degree to which a lawyer has developed an ethical compass with how likely they are to be fulfilled (or dysfunction and dissatisfied) in law practice.  For those who think ethics questions to be idealistic pie in the sky concerns, the reports' emphasis on how it affects the quality of a lawyers life and the effectiveness of her practice is worth reconsidering one's views.    For those who wonder how such a link could be drawn, think about it.  Most law students leave law school without much of an idea of how to resolve questions in practice.  The predominant method for many is the "path of least resistance"--do everything that one can argue helps one's client, so long as she won't get sanctioned.   Is it really surprising that research is finding that such lawyers, over time, develop internal dissonance (a fancy phrase for saying they begin not to lie who they are)?   The path of least resistance does not lead to fulfillment.  Knowing one's principles and at least trying to reflectively deliberate on questions and reach a judgment allow the lawyer to respect herself.  Further, the reports pointed how such lapses could explain many of the ills in the legal profession.  Many like to blame stress and the like for that, but what if the seeds of discontent are sown in the way we (don't) prepare students to deal with practic.   I don't know about others, but those questions raise serious concerns for me that lead me to believe it is worth a try to do a better job preparing our students to have a developed internal compass and a method for resolving questions.   

I read a recent ABA Survey and could see what I thought was a trend. We all know that doctrinal courses dominate the curriculum.  But the Survey showed the lawyering skills' courses are making a dent in the curriculum across the country.   The Survey was vague about the extent to which law schools were increasing meaningfully education designed to promote ethical development and professional judgment.  

In search of an indication of what law schools were doing in this area of professional formation, I turned to a review of every U.S. law school's published course offerings, on their respective websites, to gather data to see whether most law schools were indeed ignoring professional formation.   In an article that I have just submitted to journals, and which I have posted on the Social Science Research Network,, I report on the data gathered in my extensive review of law school course offerings.  Although I am sure there are more accurate ways of identifying exactly what law schools are doing, this effort allowed a glimpse on decisions law schools are making.   And that glimpse is not encouraging.  The choice seems to be clear.  Law schools across the country are adding lawyering skills courses.   Conversely, the offerings in professional formation (or even ethics courses, broadly defined) are more meager.

For schools that want to address cultivation of ethical principles and professional judgment, the article cited above gathers examples of curricular efforts of pioneers in this field to provide their students with the opportunity to go into practice prepared not just to know lawyering skills, but to have professional judgment.  The article provides specific teaching methods that would further the goal.   Time will tell whether law schools will realize that they have been ignoring an area that many of us believe is the most important thing we can offer our students.   We will do a great service if we help students acquire the ability to develop a sense of what their principles are, to reconcile those with professional values, and to learn reflective deliberation on ethical and professional questions.  Sure, students will not become experts at doing so in law school. But if we do not equip them with the foundations of maintaining their principles and making deliberate judgments, are they not more prone to take the path of least resistance?

Saturday, December 14, 2013

Score One for the Little Guy (or Gal)! -- Fighting Abusive Discovery

A few years ago I had a student named Betty who, after her husband's death, decided to go to law school because she wanted to help people.  She mainly handles domestic relations cases these days.  She called about an opponent who had served a ton of discovery on her in a relatively modest divorce case.  The opposing counsel liked to call Betty up and ridicule her client (the wife), tell her how he was going to make Betty's client regret "fighting" his demands, etc.

I suggested to Betty something I've come to teach all of my civil procedure students. Almost every state's rules of court have a section after the general breadth of discovery, modeled on Rule 26, that sets forth the objections a responding party can make.  You know, objections like overly broad, unduly burdensome, etc.   The one part that a lot of folks miss is the language in which, if the court is asked, it can limit discovery in light of the "party's resources" and the scope of the case.  I suggested to Betty that she file objections to the discovery.  I also suggested, for good measure, to file a motion for protective order seeking to protect her client from discovery that would drain her resources.   My colleague, Professor Kathleen McKee, concurred with my advice.

Professor McKee and I were tickled to hear the result of the hearing.  The court granted Betty's objections and motion.  Moreover, she took our advice and rather than argue with opposing counsel when he was seeking to intimidate her, to hold her comments for presentation to the court.  The judge saw what was going on in the case and put an end to it. 

I'm not surprised by this scenario because I've seen it over and over.  Too many lawyers like to employ litigation devices like discovery not for their intended purposes, but rather to seek advantages over clients that lack resources.   I am surprised that more lawyers do not rely on the provision in Rule 26 (if in federal court) or the state equivalent allowing the court to limit discovery in light of the factors noted.  We all know that discovery is one of the main reasons that the cost of litigation has become prohibitive.  Some bemoan that fact and wish for new rules limiting discovery.  My suggestion would be to, like Betty, use grounds already in the Rules and give judges the opportunity to help keep opposing counsel in check.  In my experience, most judges will aid a party (and counsel) who seek relief.

Thursday, August 29, 2013

Article on Increasing Teaching of Moral Formation in Law School--Past and Present

Having spent the better part of a year reviewing how early law schools taught students on the subject of moral decision-making and professional values, I found interesting examples of schools that did what recent calls for reform in legal education say we need to do.  The article also describes examples of current schools that include moral formation in the law school's plan for developing students for practice.  If you're interested, the article can be found at the following link:

Monday, May 20, 2013

How Character Influences Employers' Hiring

A couple of unrelated events brought the same message to me last week: employers take into account a person's character.  First, our law school hosted last week a Summit of Legal Employers in  our region.  An expert in the evolution of the legal marketplace, Bill Henderson, from Indiana Mauer School of Law, moderated the Summit. In the process the question came up several times what legal employers want from graduating law students.  Along items I expected to hear--such as students who are more practice ready and technologically savvy--I heard more consistently a  comparatively old fashioned trait.  Employers want lawyers who will be professionals.    By professional, they mean not just folks that will show up on time, but rather lawyers who have a sense of the right and wrong ways to treat people and who display professional values such as honesty and respect in dealings with clients, judges, and lawyers.   Interestingly, employer interviews offer an insight into the significance of character.   Following are some of the questions that employers ask: One was:  "If you have made two commitments and have a conflict where you will have to honor one and bow out of the other, how do you handle that?'   Another question:  "What are your priorities?"   By such keen questions, the employers gather information on candidates and assess whether the answers are genuine or simply say what the applicant thinks the firm wants to hear.  Regardless of their effectiveness, the reality that firms pay close attention to a candidates' integrity was encouraging.  Sometimes I sense that those of us in the profession get the impression that all firms care about is productivity, i.e. money.   And that apparently is not true.  Of course, a person's integrity will affect the employer's long-term interests.   A lawyer who is ethical and has a solid sense of who he or she is and what is important in life will, in the long run, be (a) less likely to cause problems for that firm with inappropriate behavior, sanctions, etc., and (b) will likely be more productive.  In short, I think we sometimes do not give employers enough credit for realizing the factors that affect success.

The unrelated "event" was a call from a former student, Andrew, who graduated several years ago. was now doing very well in an Indiana law firm, and wanted to bounce a question off of me.  The call was before the Summit, so I'm confident it wasn't influenced by anything I refer to above.    Andrew told me the story of when he was hired.  There were seven candidates, some from top tier schools, all at the top of their class.  He got the offer.   Afterward, the senior partner told him later that the deciding factor was that the firm decided that Andrew was clearly the most ethical of the group.  Now, I wish I could say of all students I've taught that they matched Andrew's ethical compass. Andrew, however, had a degree in philosophy and throughout law school showed maturity beyond his years.  I have seen other law students as clear about their boundaries and how to conduct themselves as Andrew, but I often use him (and them) more as models to which I urge students to emulate.   Why?  First, because I believe that a student like Andrew will find more fulfillment in law practice, be less vulnerable to the dysfunction that accompanies bad choices, etc.  Second, because it's nice to be able to point to real people who are the age of law students who are doing the right thing and succeeding.

So, does one's ethical compass--and character--count.   Clearly.  How is it measured?  Well, employers said they could tell after a period of observing someone--that "you know it when you see it."  I guess the message to law students is that doing the right thing, and paying attention to their choices, is worthwhile.  If one has done the work to develop integrity, it shows.  As Ralph Waldo Emerson said, "Who you are speaks so loudly I can't hear what you're saying."

Friday, April 5, 2013

Honesty in Billing

I recently guest blogged on the Best Practices in Legal Education about lessons I learned in law practice on how to ensure one's bills are not only accurate but helpful to clients.   I had not considered trying to teach students what I had learned until I read about a billing scandal-- one in which the law firm (DL Piper) has denied wrongdoing and received serious criticism for its denials.   For those unfamiliar with the history of the scandal, please see my guest blog -- I cite there web sites that have a history of the events.  The results of the dispute between DL Piper and the client with whom it disputes the allegations in this matter remains to be resolved. Assuming that DL Piper is exonerated completely, however, the damage to lawyers from the negative press has already occurred.

The negative press is unfortunate because most lawyers, including probably most large firm lawyers, are honest in their billing practices.  Even if one chose to assume that large firms are the location of widespread billing improprieties, more than 80% of lawyers do not work in large firms.  See the American Bar Associations' latest study of lawyer demographics at  As this study shows, almost half of lawyers in private practice are solo practitioners.  Many others are in public jobs such as prosecutors' offices, public defenders' offices, legal aid offices, in-house counsel to companies, government legal departments.  In large law firms where the billable hour quotas are often at or above 2,000 billable hours per year, the pressures (and temptations) to engage in billing improprieties such as preforming unnecessary work or outright padding of bills, is far greater than in solo practice.  Moreover, the lawyers in public jobs or in legal departments generally do not keep their hours at all, but rather receive a fixed salary.   If you ask your average prosecutor or public defender to figure their "hourly" income by comparing the amount of hours they work by their salary, you'll learn that most of them are overworked and underpaid.  They do their jobs, usually because they want to serve in some way.   But stories about overworked, underpaid lawyers don't often get published in newspapers.

In any event,  I have committed to finding ways to integrate teaching about (1) how to record one's time so as to ensure its accuracy, (2) how to come to an understanding with the client about whether if one spends part of a billing segment (usually lawyers charge in tenth of the hour segments, or six minute increments) whether the time recorded will be rounded up (or down), and (3) how to thoroughly describe one's work in bills to clients so as to better inform the client and maintain solid lawyer-client relations and trust.

In practice, I learned that clients appreciate lawyers who are up front with them about the estimated costs of representation and about what to expect in bills they will receive.    A lawyer should explain details such as how they client will receive bills, how often (e.g., monthly), how to read the bills, etc.  One of the most common client complaints is that bills do not explain sufficiently why a lawyer spent as much time as he or she did on a matter.  As a young associate, I would just put a time period and a cryptic entry in my billing notes (e.g. "telephone call" or "prepare discovery").  I can see now how a client observing an entry "prepare discovery" (and 4.5 hours of time charged) would wonder why that amount of time was necessary.   One friendly client finally told me it would be better if I said "Telephone conversation with [name of other attorney, or client, etc.] regarding [description of topic of conversation]."  Or, instead of "Prepare discovery," I would do well to put "Drafting Interrogatory Answers based on conference with client for client's review; drafting responses to request for production of documents; drafting objections to those interrogatories and requests for production that I deemed objectionable so as to avoid excess cost and expense to client; reviewing documents provided by client to remove any documents that could be withheld under attorney client privilege or work product doctrine and list of documents withheld based on these grounds as required by rules of court."  Although the person preparing my bill complained about this increase in verbiage, my relations with clients improved dramatically once I began more thoroughly explaining my work. .  I also made it a practice to bill on a monthly basis and to inform the client, with the cover letter, of the progress we had been able to make in the case. I invited the client to call if he or she had any questions or concerns.

I already integrate into my civil procedure and civil pretrial practice courses group exercises where  students draft pleadings or develop strategy documents.   I now plan to have students record their time as they perform these exercises.   After the group exercise, I'll ask them to prepare a bill based on the hourly rate I'll assign and the hourly increments (probably one-tenth of an hour increments).  We will discuss whether they will round up time entries (if they spend 15 minutes, that would round up to three tenths of an hour or 18 minutes).  I will stress, though, that they had better discuss with the client at the outset of representation how the billing process will work.  I will also note that it will go a long way toward good client relations to include some  work entries and put "no charge to client" if the task, for instance, took only a few minutes.

Effectively, I will show students how I learned that I should treat a client the way I would want to be treated.  Some may say that such lessons are best left for later when students enter practice.  I disagree.  Even in firms where supervising lawyers take some time to teach new lawyers, these lawyers are busy.  The new lawyer may, like me, have to deal with an unhappy client in order to learn a  lesson.  As far as I'm concerned, one unhappy client is one too many--especially when the unhappiness can be avoided.