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We have arrived at an intriguing moment in legal history. Lawyers, raised in an adversary system, often view themselves as warriors who, to paraphrase President John F. Kennedy’s Inaugural Address, will “pay any price, bear any burden” to advance the interests of our clients. This is not merely a time-honored tradition; it is a professional responsibility. Our duty to our clients is paramount. For some sorts of cases, an aggressive, take-no-prisoners approach may still be necessary, or at least, defensible.
But there are other occasions when a less contentious attitude may more effectively advance a client’s interests. In a legal environment in which the costs of litigation are effectively becoming prohibitive for all except the wealthy, and the explosion in information is exponential — and mind-boggling — a more cooperative approach is needed.
Even in a heavyweight fight, there are rules that both sides must obey because it is in everyone’s interest to do so. Even in highly contested cases, it is in everyone’s interest — financial, and otherwise — to carve out areas of agreement and cooperation where possible.
Look around. A paradigm shift is taking place. Legal education is undergoing its first radical reassessment in generations. Mediation, as an alternative to litigation, is no longer a distant reality; it has arrived. New techniques of legal research have radically altered the way lawyers go about investigating the law.
The truth is this: The Rambo mindset does not work very well. In fact, it works very poorly in the Digital Age, particularly in cases involving discovery of thousands, perhaps millions, of documents and bits of information.
We have arrived at a juncture in which the old approaches and attitudes must give way to the new. To paraphrase another American president, Abraham Lincoln, in his December 1862 message to Congress, as the issues facing us are new, so we must think anew.
This new milieu calls for an altered mindset, particularly for those of us whose legal careers predate the pervasive presence of the Digital Age. We have arrived at a point when it serves no one’s interest to engage in incredibly costly discovery disputes in a significant category of cases. Clients cannot be expected to pay staggering sums to obtain discovery that could otherwise have been obtained through cooperative measures.
Because much of the action in this new legal landscape is taking place in federal courts, it is not surprising that the Federal Rules of Civil Procedure and Evidence explicitly take into account the new reality, as do The Sedona Principles (Second Edition), a project of The Sedona Conference, which set out best practices recommendations and principles for addressing electronic document production. Principle No. 3, for example, states: “Parties should confer early in discovery regarding the preservation and discovery of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.”
FEDERAL DISCOVERY RULES
Federal discovery rules, significantly amended in 2006, embody this approach. Federal Rule of Discovery 26(f)(1) requires in part that parties must confer “as soon as possible” before a scheduling conference is to be held pursuant to Rule 16(b). Rule 16(b)(1) requires a district judge or magistrate judge to issue a scheduling order addressing, among other things, disclosure or discovery of electronically stored information. Rule 34 sets out further rules and procedures for dealing with electronically stored information. Many states, including my own home state of Connecticut, have similar rules, albeit often less detailed.
The Digital Age and the prohibitive cost of litigation now conjoin to create a radically new environment filled with both dangers and opportunities. In the immortal words of President Franklin D. Roosevelt: “The only thing we have to fear is fear itself.” (Maybe I am stretching a bit to squeeze in this presidential quote.)
My point is simply this: Get ready for the new mindset which the Digital Age is bringing into the practice of law. It is not simply that it is coming; it is already here. The train is leaving the station. While this is most evident in the federal context, it is only a matter of time before it permeates state practice also. Failure to adapt is no longer an option. Thinking anew will require lawyers to act cooperatively, in selective ways, even with the confines of our adversary system.
For those who can willingly adapt to this new reality, things should go reasonably smoothly. But for those who can’t make the transition, in the immortal words of someone who was most certainly not an American president — Bette Davis, in “All About Eve” — “Fasten your seat belts. It’s going to be a bumpy night.”
Douglas S. Lavine serves as a judge on the Connecticut Appellate Court in Hartford. He is the author of “Cardinal Rules of Advocacy” (National Institute for Trial Advocacy, 2002) and “Questions from the Bench ” (American Bar Association Section of Litigation, 2004).