Will phrasing it in terms of revenue help lawyers start to cooperate?
Ah, cooperation. The most counterintuitive notion to the adversary process and the cross that is the 21st century lawyer’s to bear.
Electronic discovery and the complete change it requires given the volume and complexity of available information has created a very compelling need for parties to come together and truly work together on a discovery plan for a case. It’s no secret that type of cooperation is at odds with the standard approach to litigation — the Sedona Conference Proclamation on Cooperation, originally drafted in 2006, called it out immediately after the new Rules went into effect:
“It is unrealistic to expect a sua sponte outbreak of pre-trial discovery cooperation. Lawyers frequently treat discovery conferences as perfunctory obligations. They may fail to recognize or act on opportunities to make discovery easier, less costly, and more productive.”
Since that original draft, hundreds of judges have signed onto the Cooperation Proclamation. And yet, we still have a widespread problem of lack of cooperation among counsel on ESI issues.
While at the University of Florida eDiscovery conference, I interviewed Judge William Matthewman, a Magistrate Judge in the Southern District of Florida, about the continued need for cooperation — a subject he feels strongly about. Judge Matthewman brings a perspective to the bench of a lawyer who has tried hundreds of cases, many with extensive ESI prior to joining the bench:
“There’s just too much out there for lawyers not to cooperate. They can still be zealous representing their clients, but they have to cooperate to figure out the most cost effective way and fair way to get the discovery both sides need.”
And Judge Matthewman has detailed thoughts on what cooperation means and what he expects of the parties before him:
“The lawyers need to know their clients, they need to know their IT departments, they need to know what it is they are looking for. It’s not enough to say we want every email for the last 10 years from everybody or we want every text message from every employee or everybody in this group. They have to be focused. and the defense can’t come in and just say it’s going to take us hundreds of thousands of dollars and 500 hours to obtain this information so we can’t produce all that. The parties really need to get more focused on a discovery plan. What’s really needed in this case and what isn’t. What can be gotten cost-effectively and fairly for both sides. And that’s really the focus that I have and expect them to really discuss this in advance before they bring the dispute to me.”
As I came back to the office this week and encountered yet another opposing counsel unwilling to cooperate purely out of lack of understanding the technical side of ESI, it occurred to me that 1) we still have a long way to go to shift the paradigm the Sedona Conference referred to, and 2) many lawyers still have a complete fundamental lack of understanding of ESI and the issues associated with it. While we are trying to tackle the education problem at eDiscovery Assistant, there’s another, more pressing issue.
Lawyers are still missing the ROI of cooperation. Dollars are what resonate, so let’s talk about it in that sense. Is there an ROI to cooperating with opposing counsel in getting an ESI order in place? In thinking about the parameters of discovery for a matter and how to approach it? Yes. There most definitely is. How to quantify it? Let me count three of the ways.
1. Goodwill of the Judge. As Judge Matthewman states further along in our interview, he’ll strike a motion or hold it in abeyance when the parties have not conferred in good faith. And we know that judges are people, and when parties act unreasonably, that tends to impact future decisions by the same judge. Do you want your judge to view you as unreasonable out of the gate? As a litigator, I am constantly evaluating how certain actions and statements will be perceived by a judge. How much will that cost your client down the line when you have a legitimate motion that depends on your credibility as a lawyer to sell? The dollars will vary by case, but I bet the value to your client of that goodwill is immeasurable. Or, as Visa calls it — priceless. Are you really willing to give that up by fighting about something because you don’t understand it versus trying to learn?
2. Relationship with Opposing Counsel. I practiced for 15 years in Milwaukee, Wisconsin, a tight-knit legal community with very, very good lawyers. We saw each other at events, our kids played soccer together, and we were on opposing sides of complex matters. Within that community, lawyers respected each other and honored reasonable requests. My cases involving lawyers from out of state always involved more hostility, especially from lawyers in large legal communities like Chicago and New York, where they were less likely to run into each other regularly. ESI adds to the dynamic, and lawyers who don’t feel comfortable discussing ESI regularly cast it aside as “overly complicated.” It doesn’t have to be, and frankly, it’s your job to learn it or to rely on someone who knows it. You’ll need something in this case, and you won’t get it unless you cooperate. The judge sees these things even when you think she/he doesn’t.
3. The Goodwill of your Client. Ah, there it is. The unhappy client is the lawyer’s worst nightmare. The quickest way to make an unhappy client is to pick a fight that doesn’t gain the client any advantage and needlessly spends their money. Certainly, a true fight over the scope of discovery is valid, but ignoring base level cooperation is nothing more than a waste of resources. Great service delivered in a cooperative manner with little angst is a terrific business development strategy. Any business development professional will tell you that the best way to get more business is from your existing customers, so keeping them happy should be goal number one.
Look, I know it’s easy for me to say because I work in eDiscovery all day, every day. But I’ll tell you, even though that’s true, I still need help every day from my team and my network of colleagues to get answers to questions and figure out difficult strategy. And I work hard to educate counsel who don’t understand the ins and outs so that we can move forward together. ESI is a constantly changing area of the law — there are new technologies every day and we have (as of today) 215 decisions on eDiscoveryfrom across the country already in 2018. It’s next to impossible for litigators to stay on top of all of that and litigate at the same time.
But you have to try. You need to step up to the plate and work cooperatively. Get a base level of knowledge or have opposing counsel explain what you need to know, or find someone in your office who does and get them involved. Don’t just throw in the towel and claim it’s too complicated — you’re throwing away an opportunity for a very high ROI on your practice.
Isn’t that worth considering?
This article first appeared on Above the Law.