Civility is a wonderful aspirational goal, but in the real world of litigation, disputes are inevitable. And at least in the world of civil litigation, the most acrimonious disputes often arise in discovery.
In the fall of 2003, the King County Bar Association's Judiciary and the Courts Committee decided to tackle discovery reform in the hopes of reducing discovery disputes. From September 2003 to June 2004, the Committee, with the active participation of a number of Superior Court judges, worked to develop proposals aimed at setting some reasonable limits on discovery. Those efforts ultimately led to changes to KCLR 26 and 33, the modified versions of which went into effect in September 2005.
One of the rule changes opened the door for the adoption of pattern interrogatories for discrete practice areas. KCLR 26(d) now imposes a presumptive limit of 40 interrogatories (including all discrete subparts) per party. However, in cases where court-approved pattern interrogatories have been adopted, a party that propounds such pattern interrogatories will be entitled to 15 further interrogatories.1 Like requests for admission, such court-approved pattern interrogatories must be contained in a separate document.2
Adopting a rule allowing for use of pattern interrogatories was the easy part. Following the enactment of those rules, the Committee worked with the Superior Court to create a process to propose and adopt the pattern interrogatories. The court asked the Committee to act as gatekeeper to review and develop proposals for pattern interrogatories, which then could be considered for adoption by the court. The results of the Committee's first efforts - pattern interrogatories for motor vehicle accident (MVA) cases - are now available for comment on the King County Bar Association Web site (www.kcba.org). The public comment period closes on July 15.
The process of arriving at such proposals demonstrates that civility is not the enemy of effective and passionate advocacy. At the Committee's first meeting in September, Committee Chair Brian Esler led a discussion regarding the practice areas that might benefit from the use of pattern interrogatories. After much animated debate, a consensus developed that MVA cases would be a likely candidate.
Past Chair Morris Rosenberg, who exclusively represents injured plaintiffs, volunteered to chair a drafting subcommittee. Stacy Plotkin-Wolff, an attorney for State Farm Mutual Insurance Company, volunteered to serve as co-chair. Together they enlisted a group of 12 attorneys, evenly divided between plaintiff- and defense-focused counsel.
The Committee chose MVA cases as an initial endeavor because of the similar issues such cases usually present. While some MVA cases certainly deviate from the norm, most share many common factors and present a more limited universe of discovery needs than in other areas of civil litigation. On average, about 500 MVA cases are filed in King County Superior Court each year, many of which end up in mandatory arbitration.
The subcommittee then faced the daunting task of actually drafting discovery requests that not only could be generally agreed upon by a group of plaintiff and defense lawyers, but that might also receive the court's blessing. The subcommittee took comfort from the fact that many other jurisdictions had gone through this process, recognizing that pattern interrogatories improve practice, cut down on discovery disputes and promote civility. Hence, the subcommittee began by looking at the pattern interrogatories already in use in states such as Pennsylvania, Illinois, Colorado, California and Arizona.
It was felt, perhaps naively in retrospect, that the best way to approach the drafting process was to have the plaintiffs' group draft its dream interrogatories and the defense group similarly draft its wish list, after which the two groups would swap proposals and begin the editing process in earnest. Hence, the plaintiff group (Rosenberg, Robert Green, Allen Funk, Patrick LePley, Katherine Mason, Evie McElmeel and Mark Silverman) formed a plaintiff sub-subcommittee and submitted a proposed set by the end of the year. At the same time, the defense group (Plotkin-Wolff, Anamaria Gil, Caryn Jorgensen, Randy McCaskill, Suzanne Parisien, Tom Richards and Jim Van Damme) met separately to draft its proposals.
To be mild, neither group was happy with the other group's first proposals. Each group had pages of definitions preceding the interrogatories, and the interrogatories themselves were lengthy, exquisitely detailed and hence viewed by the other side as "unduly burdensome." With subparts, both initial sets numbered well over 100 questions. It quickly became obvious to both groups that, for pattern interrogatories to work, a less "kitchen sink" approach had to be adopted.
Thus began the serious drafting work, which led to as fine an example of civility as can be found in this county. The various members of the subcommittee got together for two- to three-hour lunch meetings as often as once a week beginning in late March to craft the proposals now out for comment by the bar. Along the way, numerous issues were debated and re-debated:
The question of definitions: Did we need them at all?
Instructions: Too often they are at variance with the civil rules and does anyone read them anyhow?
Subparts: How do we define them, and should they be used at all?
Many interrogatories for both sides were considered and dropped, with the conclusion that the particular interrogatory, though perhaps appropriate sometimes, was too contentious or unique for any pattern set of interrogatories. The interrogatories that remained were edited, streamlined, reorganized, and then compared to pattern interrogatories adopted by other states.
Although strong opinions were expressed throughout the process, both plaintiff and defense counsel acknowledged a striking similarity of purpose. Plaintiff counsel recognized that defense counsel needed certain core information to even consider settling the case, and it was actually in the plaintiffs' best interest to provide that expeditiously. Defense counsel recognized that injured plaintiffs in personal injury actions were unlikely to have or remember all of the information on defense counsel's "wish list."
Both sides also recognized that creating a core group of questions, with similar wording and purpose, would probably make discovery easier. To the best of our limited abilities as lawyers, we also tried to write the interrogatories in as "plain English" as possible, in part so that they would be more user-friendly for pro se litigants.
The process of creating the first draft sets was exhausting, time-consuming and, at times, contentious, but never unprofessional or mean-spirited. The effort has been worth it. The authors of this article truly believe that such pattern discovery requests will improve the practice, lead to fewer discovery disputes and help create a more streamlined approach to discovery.
Undoubtedly, every practitioner has his or her own standard set of interrogatories that they feel are entirely appropriate. However, the problem most of us face is that our opinion of what is "appropriate" is rarely shared by the other side. Pattern interrogatories eliminate that dispute, since they represent the consensus - and court-approved - version of appropriate discovery requests. Pattern interrogatories will cut down on expense for both sides, and hopefully lead to earlier and more efficient resolution of these cases.
Indeed, the Committee by the end was sufficiently enthusiastic about the pattern sets that the members of both the plaintiff and defense subcommittees unanimously suggested that such interrogatories should be presumed to be appropriate in mandatory arbitration cases (which will require the further modification of the court rules). We now look forward to receiving your comments on the final product. n
1 KCLR 26(d)(1)(a).
2 KCLR 33(c).
