Discovery Limits: An Effort to Help Save Trial Practice
By Jeff Tilden and John Ruhl
The King County Superior Court has recently adopted discovery limitations for the first time in our county’s history. The new rules, effective September 1, provide for pattern interrogatories and limits on other interrogatories, depositions and requests for admission. We believe these changes represent a major improvement.
We now have had roughly 60 years of experience with the various discovery tools contained in the civil rules. These facts are clear at this point: (a) discovery has placed enormous burdens on the judicial system; (b) the wide latitude of discovery permitted has dramatically increased the cost of trial preparation; and (c) discovery has not helped secure the “just, speedy, and inexpensive determination of every action.” A high percentage of the transaction costs incurred in bringing or defending lawsuits arises from discovery. This is especially true of the 98% of civil cases that are settled, not tried.
Formal and informal pressures, including the desire to win, the professional obligation to represent a client zealously, peer pressure and malpractice concerns, encourage lawyers to avail themselves of all trial preparation tools at their disposal. The results are expensive. The trial process is seldom about principle anymore. Instead, avoiding the cost of litigation has become the primary impetus to the resolution of most cases. The one argument every mediator always confronts a party with is the cost of proceeding in the court system. Avoiding further litigation has become the primary impetus to resolution of most cases. In short, the discovery process has created a machine that costs more to operate than the value of the result produced.
The result, today, is that we have created a legal system in which the average citizen cannot afford to operate. It is true. It is critical that we find a way to accommodate this. In the balance between total information and economy, we have uniformly come down in favor of the former to the exclusion of the latter. It is not working. Some say this in jest, but there is a grain of truth in it: The American legal system is not only worth dying for, it can make you wish you were dead.
The direct solution to this problem is to limit the tools at the disposal of lawyers. A reduction in the number of those tools can achieve significant savings without impairing the integrity of the trial process. Trial preparation can be limited to achieve substantial savings, without materially affecting trial or settlement results.
Routinely we hear former judges tell us, “This case is appropriate for settlement.” Wouldn’t it be great, just once, to have a judge look the parties in the eye and tell them, “This case is important to the parties and I think it should be resolved by trial by jury.” Instead, we are bombarded from every side with requests to mediate and compromise. The path of least resistance leads to the point of no return. We cannot believe this is in our best interests -- as trial lawyers, as judges or as ordinary people -- over the long haul.
Selling out for 30 cents on the dollar as a defendant, or accepting 70 cents on the dollar as a plaintiff, is not apt to increase anyone’s confidence in the judicial system. Civil litigation is far more costly than it should or could be. It is hard to believe, however, that the best solution is to abandon the jury trial -- an institution that has been perfected over 900 years -- in favor of negotiations driven not by the likelihood of winning, but by the cost of participating in the trial process. What we ought to do is tackle the problem directly. If litigation is risky and expensive, we should make it less so. That is the purpose of the new local rules.
Lawyers often say, “Justice is a process, not a result.” While there is a thread of truth to this, make no mistake: Our clients do not believe it and neither does anyone else. The entire thrust of the statement, too, is inconsistent with the motivations that prompted many of us to pursue a career in the law in the first place. Why did we become lawyers back at the beginning? We should keep our eye on the prize. “Every person deserves his/her day in court.” “Justice delayed is justice denied.” “To no one will we sell, to no one will we deny or delay right or justice.”
If we are to lend any teeth to these principles, to convert them from abstract homilies to accurate descriptions of the court system in America, we are going to have to find a way to lower the price of entry into the courtroom. We believe the new local rules are just such a step. n
Jeff Tilden served as the chair of the Discovery Limits Subcommittee of the KCBA Judiciary and Courts Committee in 2003-04. He is a partner at Gordon Murray Tilden LLP in Seattle.
John Ruhl served as the chair of the KCBA Judiciary and Courts Committee in 2003-04, and currently serves as KCBA first vice president. He is a member of the Seattle office of Eisenhower & Carlson, PLLC.
