Jonathan B. Frank
June 15, 2020 (This article was previously published on LinkedIn on May 4, 2020.)
Litigation is expensive, often needlessly so. See the bluntly titled article “Five Ways Attorneys Waste Money.” Recently, the Michigan Supreme Court responded by enacting new discovery rules, which went into effect January 1, 2020. Present circumstances have given us, litigators and judges, the opportunity to do more to drive up efficiency and drive down costs.
In recent months, litigators, judges, and court staff have recognized one obvious fact: we can be more efficient through the use of technology. I just finished my first Zoom motion hearing. I have a Zoom mediation tomorrow and a Zoom arbitration hearing next week. Necessity forced this upon us, but the truth is, we can embrace it.
Let’s start with streamlining motion call and certain other court appearances. On any given Wednesday morning in Oakland County Circuit Court, for example, hundreds of lawyers are spending/billing hundreds of hours driving to court, waiting for their motion to be called, and then driving back to the office. Very little of that time is actual legal work. Status/scheduling conferences suffer from the same inefficiencies—a 15-minute conference might take three hours. So do case evaluation hearings and any other parts of the process that involve travel and waiting.
These processes are remnants of a pre-technology era. This is not how the system would have been designed in 2019, pre-COVID, and is certainly not the way the system should be designed in mid-2020 as we prepare for a post-COVID world. More motions should be decided based on the briefs. If a hearing is necessary, judges should consider issuing “tentative” rulings electronically a day or so before the hearing to narrow the issues and enable the lawyers to resolve their issues beforehand. If a judge has prepared a written decision, the judge should publish it, not read it into the record with the lawyers sitting and listening. Streamlining motion call and court appearances, mostly through the use of technology, is a necessary first step toward a more efficient litigation process.
Next, let’s look at discovery, primarily depositions, but not necessarily because of technology—videoconference depositions have been around for a long time, eliminating the need for travel. When all parties are local, on the other hand, there’s not much waste in having everyone meet in person, and there are definitely advantages for both sides (and the court reporter) to having everyone in one room at one time.
The issue is bigger than technology. Why are there so many depositions, and why are depositions so long (even with the new time limits)? In many of my recent cases, I offered opposing counsel the chance to interview my client, on the phone or in person, with me present. Nearly every time, the response was, “No, I want to take a deposition.” When I say, “I’m not preventing you from doing that later if you’d like,” the answer is, “No thanks. I want to take a deposition.”
How did this happen? Most of the time, outside of litigation, if I want to know something, I ask a knowledgeable person. We have a fairly free-flowing conversation. That seems like a pretty efficient method (especially now that we can easily use a videoconference tool). Unless it was really necessary, why would I send a “deposition notice” that my client pays for, and then sit in a conference room asking tiny question after tiny question for hours while a court reporter takes it all down and sends a bill for hundreds of dollars? Sure, sometimes it is really necessary. But not all the time. Take depositions only when necessary, only ask questions that elicit information that requires transcribing (not, for example, basic educational and employment history), and don’t waste time arguing with opposing counsel on the record. In short, treat the money your client is spending on depositions like it was your own.
The same is true for interrogatories and requests for documents. I can make a call or send an email asking for information and hopefully get a response fairly quickly, certainly quicker than the 28-day deadline in the Michigan rules. Yes, you may say, but there’s no penalty for giving bad or incomplete information in a phone call or in an email. We need formal discovery because of the threat of sanctions for noncompliance. Perhaps. But not all the time. Again, ask only questions and seek production of only those documents that will help you win or prevent you from losing.
So how did formal discovery become not only the default method, but a method so ingrained as to create active resistance to informal discovery? For decades, lawyers have been taught and trained based on the state and federal rules. We spend hours learning how to take and defend depositions, how to craft precise written discovery, how to effectively respond. But we missed a key point along the way: these rules are not the only way to gather information, and maybe not even the best way. Consider them to be a backstop, to be used when other methods of informal discovery are insufficient.
The new discovery rules lead us in the right direction. Among other things, they require initial disclosures of key information and documents. Litigants must focus on “proportionality.” Depositions have time limits. Starting there, we can enhance the anticipated efficiencies contemplated by the Michigan Supreme Court by conducting informal discovery wherever possible.
We have a problem with the cost of litigation. To solve it, litigators, though they don’t always have the motive to do so, should be looking at ways to increase efficiency. As we start back into the post-COVID world, we are reexamining our driving habits, our eating habits, our educational habits, our leisure habits, even our handshaking habits. We should be reexamining our litigation habits, too.
Jonathan B. Frank and his wife, Jan, founded Frank & Frank Law in 2019 to provide practical, efficient solutions for business and real estate disputes. Jonathan is a graduate of Stanford University and the University of Michigan Law School, cum laude. He has authored numerous articles on litigation practice, and is incoming co-chair of the Oakland County Business Court Committee. He is also a trained mediator and a Neutral Arbitrator with the AAA. More information at www.frankandfranklaw.com. Please direct comments or questions to firstname.lastname@example.org.
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 MCR 2.309(B)(4) and MCR 2.310(C)(2).