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Santa Claus, the Easter Bunny, a drunk and an efficient lawyer are walking together when they spot a $100 bill on the pavement. Who gets the bill? Duh. It is the drunk; all the others are mythical creatures, mere figments of the drunk’s imagination. Lawyers are too often afraid to keep it simple It’s not our fault, of course. Efficiency is driven out of us by fear, fear that we might overlook something by being simple and direct. We are afraid to paper a settlement with simple efficiency such as “in return for $1000 Joe Client releases all claims against Dave Defendant.” No, we timidly write a three-page document in which Joe is “defined” in at least a full paragraph to mean, well, “Joe” of course, but also as his parents, his offspring, born and unborn, his potential receiver in bankruptcy and the woman to whom he drops off his dry cleaning. “Release” might not be broad enough so we cautiously throw in “discharge and remise.” And because we are brought to near paralysis by the thought of simply getting a release of “all claims,” we define claim to include “causes of action, accounts, contracts, damages, demands, suits, debts, sums of money, reckonings, bonds, bills, specialties, widgets, covenants, convents, controversies, agreements, nature preserves, promises, variances, trespasses, judgments, executions or other claims.” Whew. And nowhere is our fear of simplicity and efficiency more pronounced than when we propound or respond to discovery requests. We are pathologically unable to issue a request which simply says “produce all relevant documents.” Instead, we preface our requests for production with six pages of definitions and instructions. We do this because, in the immortal words of Pogo “I have met the enemy, and he is us.” We know that our simple words, were we to dare to be simple, will be interpreted by a (gasp) lawyer, who will spin and twist them. We voted for him, but there is no better explanation for why one lawyer cannot trust another lawyer to reasonably interpret simple language than when our commander- and lawyer-in-chief uttered the famous words “that depends on what your definition of is is.” So we can’t, we think, simply ask for “documents” because our adversary (oh, the dastardly villain) will narrowly interpret the term to mean “nothing but pieces of 8 x 11.5 inch paper.” Lest there be any confusion that we mean “document” when we use the word “document” we define “document” as “all writings or records of any kind, including but not limited to the original, any drafts, and all non-identical copies of all correspondence, letters, memoranda, telegrams, telexes, diaries, calendars, books, reports, records, handwritten notes, working papers, statements, journals, work sheets, charts, plans, diagrams, sketches, brochures, pamphlets, manuals, newspapers, magazines, bulletins, circulars, contracts, proposals, written arrangements, interoffice communications, photographs, pictures, slides, films, microfilm, microfiche, voice recordings, tapes, videotapes, computer input and output material, facsimiles, electronic mail communications, and other writings or communications of any kind or description whatsoever, in your possession, custody or control.” Telegrams? Telexes? Well, we developed our forms over time. Each time we issue a new request for documents, each time we receive someone else’s definition, we mine for new nuggets and add a word here and a word there to expand the definition. We always add; we never subtract. So what if the last telegram we received was on the occasion of our birth; we are going to include telegrams in our definition so that the sharpie on the other side can’t withhold a smoking gun. Pu-lease. Why can’t we simply give someone a release without defining the term? Do we really think judges are so dense that they will not enforce a release because we haven’t defined the word or so technical that they will look kindly on someone who failed to produce a telegram because the word telegram was not included in the definition? It isn’t just that the use of detailed definitions can become silly. Mindlessly adding definitions designed to be as broad as humanly possible can render otherwise reasonable requests impermissible and burdensome. In Diversified Products Corp. v. SportsCenter Co., 42 F.R.D. 3 (D. Md. 1967), the defendant propounded interrogatories preceded by two pages of detailed definitions and instructions. The court held: “Prefacing a long series of interrogatories by reasonable definitions may be helpful, avoiding tedious repetition. But the use of unreasonable “definitions” may render the interrogatories so burdensome to the answering party and to the court, that objections to the entire series should be sustained with sanctions, whether or not an occasional interrogatory might be reasonable.” Id. at 4. (Emphasis added.) The Diversified court did not impose sanctions, even though it found that the definitions were in fact burdensome, presumably because in 1967 it was a fairly new proposition that a party could be sanctioned for burdensome instructions. But in the 40 years since the Diversified opinion, there is no reported decision (at least that we could find) that actually sanctions someone for overbearing instructions and definitions. Um, unless, that is, you consider that having your discovery requests quashed or ignored is a sort of a sanction. In Larson v. Correct Craft Inc., 2006 U.S. Dist. Lexis 78028 (D. Fla. 2006), Larson was not content to simply define documents somewhat broadly (we’re paraphrasing here, but ” ‘documents’ shall mean any word contained in any edition of Roget’s Thesaurus”) but also added a series of instructions that purported to require, each time a document was identified in response to an interrogatory, the date of the document, its location, its author, its recipients, the employers of each of the persons named, the substance of the document, and the occasion for and the circumstances of the creation of the document. Too much, said the court. The interrogatories might have passed muster on their own, but gilded with overbearing instructions they became inappropriate and did not have to be answered. In Builders Ass’n of Greater Chicago v. City of Chicago, 2001 U.S. Dist. Lexis 14076 (N.D. Ill. 2001), the court quashed a subpoena because of overly broad definitions. Likewise, in C alcor Space Facility v. Superior Court, 53 Cal. App. 4th 216 (Calif. Ct. App. 1997), the court found that a six-page set of definitions and instructions “is particularly obnoxious” and, while the court never determined whether or not the actual requests were reasonable, it quashed the discovery because the excessive use of definitions and instructions “in and of itself” rendered the requests unduly burdensome. The use of overbearing definitions can also have real impact on whether you get answers, even where the requests are otherwise legitimate, because the definitions may be counted against limits. In Larson, the court found that an instruction that required identification of documents relating to the answer makes each interrogatory two interrogatories, one for the facts and another for the documents. And that count put the number above the limit. Problem is compounded by responding with obfuscation Our inefficiency is not limited to the propounding of requests. Faced with overbroad definitions and instructions in discovery requests-and even when the requests are themselves reasonable-we more often than not compound the problem by responding with obfuscation. We start off with a general statement, before addressing individual requests, along the lines of “defendant objects to plaintiffs’ Definitions and Instructions as being burdensome and oppressive, purporting to require actions not contemplated much less required by the Federal Rules of Civil Procedure, invading the attorney-client privilege and work product protections, and violating the Mann Act.” Then, after each individual request we repeat the general objection (as if twice is substantively better), and we add a further objection that the request calls for information not reasonably calculated to lead to the discovery of admissible evidence. And then we say “without waiving these objections, defendant will produce all non-privileged, relevant, responsive documents in its possession or control.” Objection! Never mind! Huh? Why do we do that? Same answer. Fear. We are terrified to waive a privilege or an objection, so we say we are reserving our objections at the same time that we are producing (and, therefore, of course, waiving the objections). We cannot bring ourselves to be simple-but we surely act simple. Here’s the thing about lawyer jokes: Lawyers don’t think they are funny; people who are not lawyers don’t think they are jokes. But when we lawyers insist on defining simple terms to the point of exhaustion, we are the jokes. Why can’t we keep things simple and efficient? By now, we all know what we mean when we ask for a “document.” We don’t really need page after page of definition. We know this, yet we are unable to snap our addiction to superfluous rhetoric. So here is our idea. Let’s agree that judges merely expect us to be reasonable in propounding discovery requests and in responding to them, and all the rest is just inefficient and unnecessary excess. Let’s agree to stop defining terms that anyone with an eighth grade education already knows. It’s just that we aren’t going to stop until you do. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners in Chicago’s Jenner & Block. Solovy is the firm’s chairman and past chair of the ABA Discovery and Trial Practice committees. He can be reached at [email protected]. Byman can be reached at [email protected].

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