Will Sylianteng ()
As attorneys, we would like to believe that we are members of a civilized and high-brow profession. And why shouldn’t we? Our clients bicker, fight and can’t stand each other. Then, they hire us to civilly negotiate their claims in their stead, and authorize us to take the case to trial only if those negotiations fail. At trial, we greet each other as “esteemed counsel” and address the court as “your honor.” Throughout the process, there is no gamesmanship—just civil and respectful disagreement.
Well, if I just described your practice, and the way your adversaries practice against you, I tip my hat to you and say “keep doing what you’re doing.”
The rest of us are stuck in the real world, dealing with opponents hell-bent on destroying our clients, and our practice along the way, by drowning us in a sea of motions and discovery: the litigation tactic commonly referred to as “scorched earth.”
Recently, in Berg v. Nationwide Mutual Insurance, Berks CCP No.98-813 (June 12, 2014), Berks County Court of Common Pleas Judge Jeffrey K. Sprecher discussed scorched-earth tactics in his opinion issued to support his insurance bad-faith verdict against Nationwide that included $18 million in punitive damages and $3 million in court costs and attorney fees.
While I will leave the commentary regarding the appropriateness of the verdict and whether the underlying behavior did, in fact, amount to scorched-earth tactics, and recommend readers seek out those articles and the Berg opinion itself and judge for themselves, what struck me, upon reading the opinion, was the court’s targeted focus on Nationwide’s attorney fees and costs, which were approximately $3 million over 18 years of litigation or about $167,000 per year. It appeared to be the primary basis for the court’s determination that scorched-earth tactics were used in defending that matter.
The court, in describing the tactic, noted that “[plaintiffs] can ill afford the costs of matching litigation expenses with this big corporation.”
Berg—because of the nature of the claim and the underlying facts at play in that case as determined by the court—may not be the greatest example, but it does highlight a common misconception that the amount of money a defendant (or a plaintiff, in certain circumstances) spends in prosecuting or defending a claim is determinate of whether scorched-earth tactics were used. That simply is not the case, which makes it difficult for courts to determine whether scorched-earth tactics are in play, and even more difficult for sanctions, if necessary, to be applied.
Scorched Earth Versus Principled Defense
As noted, scorched-earth litigation is the term for a litigation strategy wherein the party with deeper pockets, and thus more money for legal fees, so overwhelms the adverse party with motions, discovery requests, voluminous productions or expensive e-discovery requests in order to cause the adverse party to capitulate not because of the lack of a meritorious claim or defense, but simply because of the expense and time associated with litigation.
However, on the flip side are those that truly engage in principled defense litigation. Principled defense litigation describes the mindset that a client would rather pay an attorney than pay a frivolous claim, regardless of the size of the claim and the ratio that would be created between the legal fees and costs expended and the amount of that claim.
That said, the tactics utilized by those who are taking a principled stand often mirror the zealousness of those who practice scorched-earth tactics.
So how do you, or more importantly the court before which you are applying for sanctions or a protective order, differentiate between an attorney taking a principled stand and an attorney using scorched-earth tactics to beat down an otherwise meritorious claim?
It cannot be the amount of attorney fees spent or the ratio of that amount versus the amount spent by the opposing party. Obviously, when dealing with a scenario involving an hourly fee-based attorney against a contingent fee attorney who doesn’t get paid unless he or she wins, the client who is paying the hourly fee will have higher costs during the pendency of the litigation. Furthermore, the choice of counsel, including the rates agreed upon by attorney and client, is sacred, and that choice—whether it is to hire a $1,000-per-hour attorney or a $100-per-hour attorney—should not be used as a barometer of ill intention. To do so would violate a bedrock principle in our profession—the right to choose counsel.
So, how do we determine what is scorched-earth litigation tactics without referencing attorney fees expended? The best way is not to even try.
Best practices dictate that one should seek to prevent the tactics from ever occurring in the first place. Advocating for early intervention by the court or negotiating a litigation/discovery plan with adverse counsel can accomplish this aim.
Preventing Scorched Earth
Fortunately, there are a number of federal and state courts that have enacted discovery rules that attempt to limit abuse and still allow for sufficient and reasonable discovery. In my opinion, the ones that are most effective are the following:
• Numerical limitations on the number (including subparts) of written interrogatories without leave of court.
• Limitations on the number of depositions to be taken without leave of court.
• Limitations on the total number of hours a deponent can be forced to be questioned at a deposition without leave of court.
• Standard interrogatories and request for production to be used in all smaller value cases (like the ones used in the Philadelphia Court of Common Pleas).
If your jurisdiction does not have these types of rules in place already, an attorney can still reach out to the court and adverse counsel and attempt to negotiate discovery parameters similar to the ones set forth in the rules mentioned above (note: do not forget to include e-discovery, the new play area for the scorched-earth practitioner). Just remember, if possible, to have the court sanction the agreement, in order to give it teeth (come on, we’re lawyers and trust is in limited supply).
In a perfect world, scorched-earth tactics would never be used, but in the real world, a proactive approach to preventing the tactic will go a long way for both you and your client.
Will Sylianteng is managing partner of WES Litigation Group in Doylestown, Pa. He focuses his practice on civil litigation and insurance.