September 2016 Bar Bulletin
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September 2016 Bar Bulletin

Good Intentions and Unintended Consequences

KCBA Discovery CLE on October 14

By Steven A. Reisler


Working together to improve discovery and other pre-trial processes, the King County Bar Association and King County Superior Court will present a full-day seminar in October to address current problems and open a dialogue to effect solutions.

The modern era of civil procedure began in 1938 with the U.S. Supreme Court’s adoption of the Federal Rules of Civil Procedure. Since then, the rules often have been revised and updated — most recently within the past year — to address changes in technology, law and society ... and because lawyers find ways to circumvent the rules.

Does discovery work as intended? Do the courts apply the rules too rigidly, too timidly, too erratically? Or is it true, as Katherine Hepburn said, “If you obey all of the rules, you miss all of the fun.”

On October 14, KCBA will host a day-long, CLE-accredited seminar at the Seattle Hilton Hotel: “Pretrial Procedure – Good Intentions and Unintended Consequences.” It is a seminar designed for trial lawyers and trial judges, either green or grizzled.

The program covers the waterfront:

• the evolution of trial by combat to combat by discovery;

• game theory in civil procedure and the discovery analog to the Cold War doctrine of mutually assured destruction;

• the uses and abuses of mediation;

• discovery disproportionality in civil litigation in federal, state and district courts; and

• the legal gymnastics of local rules practice after Jones v. Seattle (discussed below).

The seminar will include mock discovery disputes presented by experienced trial counsel and judges in unscripted, extemporaneous motions.

Do the discovery rules lead to unintended consequences? The adversarial system — whether due to lawyers’ zeal in representing their clients or due to client pressure — sooner or later leads to the abuse of discovery rules. The lawyer who knows more about the facts and who can (ahem!) conceal those facts from her adversary has a distinct advantage.

It is a lawyer’s variation of the classic Prisoner’s Dilemma: In the absence of a strong third-party referee, the lawyer who does not cooperate and who does not play by the rules will always gain an advantage over the lawyer who does cooperate and who does play by the rules.

Attempts to control discovery abuse include distinctly non-adversarial tools such as mandatory arbitration for smaller cases and mandatory mediation for all of them. These procedures are ostensibly less expensive and less complicated. But these tools, too, have lost some of their edge as parties learn how to game the system.

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