Friday, February 3, 2012

Save Sanity And Trees

                Other attorneys may disagree, but my general philosophy with legal drafting, whether drafting a contract or a litigation document, is to make things as simple, concise, clear, and efficient as possible.   “Papering” the other side can have some strategic advantage in rare instances, and often even a concise legal document would be considered voluminous by a lay person.   As a general rule, however, my contracts are written so that they can be easily understood without ambiguity or excess verbiage; my pleadings tell people what a case is actually about; my discovery demands and responses are short and to the point; and my motions are relatively easy to read and understand.

             One prime example where trees weep over the inefficiency of the legal profession is in discovery.   Many lawyers will preface their document demands with pages upon pages of meaningless instructions and definitions, followed by an unnecessarily large number of duplicative and barely intelligible demands.  The only “instructions” necessary for responding to a discovery demand are the CPLR and the Administrative Rules (in State Court), or the Federal Rules (in Federal Court), and the rules of the individual judge.  No matter what “instructions” an attorney puts on their demands, a party cannot unilaterally override those rules.
   
             Personally, with respect to discovery, I am a big fan of Rule 26 in the Federal Rules.    Under that rule, a “party must, without awaiting a discovery request, provide to the other parties…  (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information… (ii) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment… and (iii) a computation of each category of damages claimed…  [and] documents or other evidentiary material… on which each computation is based, including materials bearing on the nature and extent of injuries suffered” and (iv) insurance information.  

             Thus, under Rule 26, or a State Court discovery demand that parrots its language, everything should be disclosed - period.  Obviously, you may need some specifically tailored requests to ensure that everyone knows what is considered relevant, and so that you have a basis for seeking court intervention if there is noncompliance.  A laundry list, however, does not help anyone.  In fact, clever efforts to turn 10 demands into 200 only serve to create more work for everyone, including the Courts if they become involved.  Addressing discovery disputes over a handful of well-written requests is relatively simple when compared with fighting over dozens, or hundreds, of separate requests.    In fact, I think the reason for some of the overkill is lawyers being fearful that they will forget something, but it is a lot easier to overlook an issue buried within an encyclopedic demand than to monitor compliance with a tightly drafted one.  

             The same rule applies with virtually all legal drafting.  I recently filed a motion to dismiss for a defendant in a case where the Plaintiff's claim against my client, although highly defensible, was relatively simple.  The Plaintiff's attorney probably spent days drafting a complaint that rivaled war and peace.  They speculated all over the place "upon information and belief," and asserting dozens of far-fetched causes of action, but somewhere along the lines forgot to include the one basic claim that actually made sense.

             With motion practice, all the time lawyers will write tomes, expecting judges (who are, believe it or not, human beings), to parse out the one or two really important aspects of their argument -- which were conveniently placed in the middle of a footnote on page 145 of their brief.

             Keeping things concise and simple (which requires knowing what is important and what isn't), makes everything easier, and more cost effective, for lawyers, clients, and the courts.  

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